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09/29/88 the People of the State of v. Charles Albanese

September 29, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

CHARLES ALBANESE, APPELLANT



SUPREME COURT OF ILLINOIS

531 N.E.2d 17, 125 Ill. 2d 100, 125 Ill. Dec. 838 1988.IL.1476

Appeals from the Circuit Courts of Lake and McHenry Counties, the Hon. William Block and the Hon. Michael J. Sullivan, Judges, presiding.

APPELLATE Judges:

JUSTICE CLARK delivered the opinion of the court. JUSTICE STAMOS took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK

The defendant, Charles Albanese, filed petitions under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.) challenging separate murder convictions in McHenry and Lake Counties. Charles Albanese was tried and convicted in the circuit court of McLean County for the 1980 murders of his father and his wife's grandmother and the attempted murder of his brother. The trial had been transferred to McLean County from McHenry County. A jury sentenced him to death. This court affirmed the conviction and sentence. (People v. Albanese (1984), 102 Ill. 2d 54 (Albanese I).) The United State Supreme Court denied certiorari. (Albanese v. Illinois (1984), 469 U.S. 892, 83 L. Ed. 2d 205, 105 S. Ct. 268.) His McHenry County post-conviction petition was denied by the circuit court following a full evidentiary hearing. Charles Albanese was also tried and convicted in the circuit court of Lake County for the 1980 murder of his mother-in-law. The trial Judge sentenced him to death. This court affirmed that conviction and sentence. (People v. Albanese (1984), 104 Ill. 2d 504 (Albanese II).) The United States Supreme Court denied certiorari. (Albanese v. Illinois (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061.) The Lake County post-conviction petition was denied without an evidentiary hearing. Both post-conviction petitions were appealed directly to this court under Supreme Court Rule 651 (107 Ill. 2d R. 651) and were consolidated due to the similarity of issues presented for consideration.

Five issues are presented by the defendant for review: (1) whether he was denied effective assistance of counsel at each trial; (2) whether he was denied effective assistance of counsel at each sentencing hearing; (3) whether recent evidentiary discoveries render scientific evidence admitted during the trials unreliable; (4) whether the Lake County circuit court erred in denying the post-conviction petition without an evidentiary hearing; and (5) whether the Illinois death penalty statute is applied in a racially discriminatory manner and is therefore unconstitutional.

The factual background of each case was presented at length in each of the direct appeals (Albanese I and Albanese II), and we will therefore discuss only those facts relevant to the issues before our court for review. Briefly, however, Charles Albanese was convicted of murdering and attempting to murder, by the use of arsenic, members of his and his wife's families for the purpose of financial gain.

A Post-Conviction Hearing Act proceeding is not an appeal per se, but a collateral attack on a judgment. (People v. James (1986), 111 Ill. 2d 283, 290.) That is to say, the defendant's guilt or innocence is not at issue; rather, a post-conviction hearing is a proceeding "meant to delve into the constitutional phases of the original conviction which have not previously been determined." (People v. Gaines (1984), 105 Ill. 2d 79, 87.) The burden is on the defendant to establish a substantial constitutional deprivation. (People v. Silagy (1987), 116 Ill. 2d 357, 365; People v. Griffin (1985), 109 Ill. 2d 293, 303.) A defendant is not entitled to a post-conviction hearing as a matter of right, but only when the allegation of a substantial violation of constitutional rights is supported by the record or by accompanying affidavits. (People v. Silagy (1987), 116 Ill. 2d 357, 365; People v. Gaines (1984), 105 Ill. 2d 79, 91-92.) Determinations of the reviewing court on the prior direct appeal are res judicata as to issues actually decided and issues that could have been presented on direct appeal and that were not are deemed waived. Silagy, 116 Ill. 2d at 365.

For purposes of this review, we are combining our Discussion of the defendant's assistance-of-counsel claims. The defendant contends that he was denied effective assistance of counsel both at the trial and at the sentencing phase of the proceedings in both counties. This court squarely dealt with the issue of effective assistance of counsel at the Lake County trial in Albanese II, in which we specifically adopted the Supreme Court's rule for challenges to effectiveness of counsel enunciated in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. (104 Ill. 2d at 526.) Because Albanese II addressed the very issue of the effectiveness of counsel at the trial in the Lake County proceeding it is now res judicata (People v. Gaines (1984), 105 Ill. 2d 79); subsequent addition of somewhat different allegations of incompetence cannot now be raised in this petition as to the Lake County trial. This court has not, however, specifically reviewed the ineffective-assistance-of-counsel allegations for either phase of the McHenry County proceedings or for the sentencing phase of the Lake County trial. Normally, at this point in the proceedings consideration of these issues would be barred based on the theory of waiver; issues that could have been raised on the direct appeal to this court and were not are waived. (People v. Silagy (1987), 116 Ill. 2d 357, 365; People v. Kubat (1986), 114 Ill. 2d 424, 436.) However, we have held in the past that "[the] principle of waiver . . . will not be applied in post-conviction proceedings where fundamental fairness so requires." People v. Cihlar (1986), 111 Ill. 2d 212, 218.

We therefore turn now to an application of the Strickland standard to those phases not previously reviewed by this court to determine if defendant has made a case for ineffective assistance of counsel. Strickland advances a two-component standard. The first component is to prove that counsel's representation fell below an objective standard of reasonableness such that the trial results were unreliable. Under the second component, the defendant must prove that he was prejudiced by the unprofessional conduct; that is, he must show that, but for the attorney's unprofessional errors, the results of the trial would have been different. (Strickland, 466 U.S. at 687, 694, 80 L. Ed. 2d at 693, 698, 104 S. Ct. at 2064, 2068.) However, as an assistance to other courts, the Supreme Court has offered the following guideline:

"court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.)

The question we must answer, then, is, Does defendant's claim of ineffectiveness present an indication that he suffered sufficient prejudice to overturn the trial results? We find that there was no such prejudice.

As noted in Strickland, "[w]hen a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact-finder would have had a reasonable doubt respecting guilt." (466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69.) Trial errors that the defendant alleges in this post-conviction proceeding include the following: that defendant's trial attorney was ill-prepared for trial; that he prepared for trial in less than one month; that he did not speak to enough or the right expert witnesses; that he did not properly cross-examine the State's witnesses; that he failed to reasonably investigate the toxicology reports or the lab that performed the tests; that he failed to rebut certain of the State's evidence regarding the date of delivery of arsenic to the defendant; and that he failed to accurately present the defendant's financial condition. Errors that the defendant alleges occurred in the sentencing ...


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