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04/16/87 the People of the State of v. Robert I. Weger

April 16, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ROBERT I. WEGER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

506 N.E.2d 1072, 154 Ill. App. 3d 706, 107 Ill. Dec. 181 1987.IL.519

Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. GREEN and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On April 17, 1984, defendant, Robert Weger, was convicted at a bench trial by the circuit court of Macon County of the offense of burglary in violation of section 19-1 of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1983, ch. 38, par. 19-1) and armed violence in violation of section 33A-2 of the Code (Ill. Rev. Stat. 1983, ch. 38, par. 33A-2). He was sentenced to seven years in the Illinois Department of Corrections on the armed violence conviction. In March 1986, defendant filed a petition for post-conviction relief, alleging he was not proved guilty beyond a reasonable doubt of the offense of armed violence and that he received ineffective assistance of counsel. After a hearing, defendant's petition was denied, and this appeal followed. We affirm in part and reverse in part.

The evidence presented at trial shows that on January 5, 1984, members of the Decatur Police Department responded to an alarm at the Team Electronics Store in the Northgate Mall. The officers ascended to the roof of the electronics store. There they found a codefendant. The defendant was apprehended exiting the store through an air vent. The defendant had in his possession a pair of gloves and a canvas bag containing pry bars, sledge hammers, and a triangle wedge bar. He also had a map and a screwdriver in his pocket. In another pocket was found a straight-blade razor with the tip of the blade broken off. The remaining blade measured approximately 2 1/2 inches long. The court found the defendant guilty of burglary, possession of burglary tools (Ill. Rev. Stat. 1983, ch. 38, par. 19-2), and armed violence for possession of the straight-blade razor. The court vacated the conviction for possession of burglary tools, entered judgment on the others, and sentenced the defendant on the armed violence conviction.

On March 10, 1986, defendant filed a pro se petition for post-conviction relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, pars. 122-1 through 122-7). Counsel was appointed, and a new petition was filed alleging that defendant did not receive effective assistance of counsel at trial and was not proved guilty beyond a reasonable doubt of the offense of armed violence. A hearing was conducted, and defendant's petition was denied. This appeal followed.

Defendant argues it was error to deny his petition for post-conviction relief. He alleges first that he was denied his sixth amendment right to effective assistance of counsel by his counsel's failure to perfect an appeal in this case since he would have prevailed on the merits of an appeal.

Ineffective assistance of counsel is to be Judged by the standard set forth by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 1052, which has been adopted by the Illinois courts. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, cert. denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061.) The Strickland standard is a two-prong standard. The first prong is if counsel's representation falls below an objective standard of reasonableness. The second prong is if these shortcomings deprived the defendant of a fair trial. For this, the defendant must show there is a reasonable probability that, but for the unprofessional errors, the result would have been different. 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.

The record clearly establishes that defendant intended to appeal, trial counsel indicated he would perfect his appeal, and no appeal was made. Failure to perfect an appeal when directed to do so falls below an objective standard of reasonableness. (People v. Morguez (1980), 90 Ill. App. 3d 471, 475, 413 N.E.2d 128; People v. Meacham (1977), 53 Ill. App. 3d 762, 767, 368 N.E.2d 400.) If defendant was prejudiced by this failure, then he has been denied effective assistance of counsel. Therefore, we need address the allegation of defendant's likelihood of success on appeal.

Defendant argues that if his appeal of the original trial had been perfected, he would have succeeded with two arguments, being (1) he received ineffective assistance of counsel; and (2) he was not proved guilty beyond a reasonable doubt of the offense of armed violence.

Defendant argues that he received ineffective assistance of counsel at the original bench trial since counsel conceded defendant's guilt to the offenses of burglary and possession of burglary tools. During opening statement, the trial counsel stated:

"This won't be lengthy, but I do think it's proper to indicate to the court that even though we are not entering a plea of guilty at this time, we believe the evidence will indicate that my client is guilty of the offense of burglary, and as far as the evidence goes, there will be evidence that he had burglary tools. I don't think there will [be] a conviction for the possession of burglary tools since that's essentially an included offense of the ...


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