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10/20/94 PEOPLE STATE ILLINOIS v. LESLIE PALMER

October 20, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
LESLIE PALMER, APPELLANT.



Freeman, Harrison, McMORROW

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

Defendant, Leslie Palmer, pleaded guilty in the circuit court of Mason County to three counts of first degree murder (Ill. Rev. Stat. 1991, ch. 38, pars. 9-1(a)(1), (a)(3)), and one count each of home invasion, residential burglary and armed robbery (Ill. Rev. Stat. 1991, ch. 38, pars. 12-11, 19-3, 18-2(a)). He was convicted of felony murder, home invasion and residential burglary. Defendant was sentenced to determinate terms of imprisonment on the residential burglary andhome invasion convictions. On the felony murder conviction, defendant was sentenced to death.

FACTUAL AND PROCEDURAL BACKGROUND

On February 21, 1992, the victim, 85-year-old Gertrude Nussel, was found dead on the floor in her Havana, Illinois, home. Fingerprint evidence taken from the crime scene revealed that defendant had been present in the victim's home. Defendant was subsequently picked up by police for questioning. After being given Miranda warnings, defendant made an oral statement admitting his involvement in the commission of the offense.

In his statement, defendant told police that he and Scott Kinkead had decided to "hit somebody off." (Defendant defined the phrase as meaning to rob someone.) The two, along with Kinkead's girlfriend, Tara Poppenhager, drove around for a while, eventually coming to the home of Gertrude Nussel. Defendant and Kinkead gained entry to Nussel's home on the pretext of needing to use the telephone. Poppenhager, having been instructed by either Kinkead or defendant to drive around for a while, did not accompany the two inside the home.

Once inside, defendant asked Nussel the whereabouts of her purse. When Nussel replied that her sister had it, defendant put her in a "sleeper hold" (putting one arm behind the victim's neck and one arm around the throat to cut off the air supply) intending to render her unconscious. As defendant was holding her, Nussel showed him the location of the purse. Defendant then followed her to that location and tried to "put her to sleep again."

Nussel gave defendant and Kinkead the purse and defendant "put her in sleeper again, tried to put her out so we could leave." She would not "go to sleep" so defendant put his knee on one hand, held her other hand and tilted her head back. As defendant was holding Nusseldown, Kinkead slashed her throat. Defendant and Kinkead then went into the bedroom of the home where they found three $20 bills in a small box.

They left the home, with defendant carrying the victim's purse and the three twenties. Once reunited with Poppenhager in the car, Kinkead went through the purse and found a $5 bill and some ones. Defendant divided the three twenties and Kinkead divided the money from the purse equally between the three of them.

Defendant was indicted for three counts of first degree murder and one count each of home invasion, residential burglary, and armed robbery. At his March 1992 arraignment, defendant entered a plea of not guilty to all six counts.

Subsequently, on July 2, 1992, at a pretrial conference, defendant indicated to the court his desire to withdraw his prior plea of not guilty and to enter a plea of guilty on all of the charges. At that time, the State indicated to both defendant and the court that there had been no negotiations and no agreement in exchange for defendant's plea. Further, the State asserted a reservation of its right to seek the death penalty upon defendant's plea or his conviction. The court continued the matter for the express purpose of permitting defendant additional time to consider his decision to plead guilty.

As the validity of defendant's plea is at issue in this case, we set out the particulars of the plea proceeding at length.

Court was reconvened on July 7, 1992. At that time defense counsel informed the court of defendant's continued desire to enter a plea of guilty and further that the plea was not negotiated. The court then advised defendant of the irrevocable nature of entering a guilty plea and admonished him that the State was stillseeking the death penalty. Defendant stated that he understood.

The court then read each of the six counts of the indictment and the potential penalties for conviction on each; again admonished defendant that the State was continuing to seek the death penalty; advised defendant that the effect of his plea was waiver of various constitutional rights; and informed defendant of his entitlement to certain rights with respect to the death sentencing procedures. In response to the court's inquiry, defendant stated that he understood.

In response to the court's inquiry as to whether defendant had any questions concerning the charges, potential penalties or his rights, defendant replied in the negative. Defendant persisted in his desire to withdraw his previous plea and to enter a plea of guilty. To insure defendant's understanding, the court repeated the six charges in the indictment. Defendant pleaded guilty to all of the charges.

After entering his plea, defendant acknowledged for the court that his plea had not been induced by threats or promises and further that no one had promised or insinuated that he would not receive the death penalty or a lenient sentence in exchange for the plea. Defendant also stated that he was satisfied with his representation, that the pleas were being made after consulting with both his attorney and his family, and that he was pleading guilty because he was, in fact, guilty of the offenses as charged.

The State then presented the factual basis for the plea, which consisted largely of defendant's prior inculpatory statement to the police. Defendant acknowledged that he had given the statement voluntarily. The court found a sufficient factual basis to accept the plea.

The court next directed its inquiries to defense counsel. Counsel acknowledged that he had received theState's evidence and had discussed it with defendant. Counsel also acknowledged that he had reviewed defendant's inculpatory statement and that he had discussed the statement with defendant. He further stated his belief that if this matter were to proceed to trial that the State could properly introduce the evidence it had presented in support of defendant's plea.

The court then entered judgment against defendant on all six counts of the indictment.

Prior to sentencing, defendant moved the court to withdraw his guilty plea, asserting that the plea was the result of a misunderstanding between him and trial counsel. After hearing on the motion, the court determined that defendant's plea had been entered knowingly and voluntarily. Defendant's motion to withdraw his plea was, therefore, denied and the case proceeded to sentencing.

Defendant waived a jury for sentencing. At the eligibility stage of sentencing the court found the presence of a statutory aggravating factor beyond a reasonable doubt. (See Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(6)(a)(ii).) Following a hearing on aggravation and mitigation, the court pronounced its sentence. On the charge of first degree murder committed during the commission of a forcible felony (armed robbery), defendant was sentenced to death. Defendant was additionally sentenced to 15 years for residential burglary and 30 years for home invasion, the sentences to run concurrently.

Subsequent to sentencing, defendant filed a post-trial motion seeking vacatur of his guilty plea and death sentence. In support, defendant claimed, inter alia, ineffective assistance for counsel's failure to obtain concessions in exchange for his guilty plea. Defendant urged that he had been prejudiced because Kinkead, who "was clearly * * * more culpable," had been offered adeterminate sentence in exchange for his plea. Defendant's motion was denied. Incidentally, although Kinkead was offered a plea agreement, he rejected the State's offer and, like defendant, was ultimately sentenced to death.

Defendant appealed directly to this court. (Ill. Const. 1970, art. VI, § 4(b); Ill. Rev. Stat. 1991, ch. 38, par. 9-1(i); 134 Ill. 2d R. 603.) Sentence has been stayed pending our review. (134 Ill. 2d Rules 603, 609(a).) We now affirm.

GUILT PHASE

Defendant's first contention on appeal is that his guilty plea was not voluntary and knowing where it was entered as the result of ineffective assistance of counsel. Defendant maintains that trial counsel was deficient in advising him to enter a "blind plea" (guilty plea without a plea agreement) without counsel ever having sought from the State a fixed term of imprisonment in exchange for the plea.

Defendant's claims of an involuntary plea and ineffective assistance are, under these facts, interlocking. Resolution of the question of whether a defendant's pleas, made in reliance on counsel's advice, were voluntary and knowing depends on whether the defendant had effective assistance of counsel. If the pleas were made in reasonable reliance upon the advice or representation of his attorney, which advice or representation demonstrated incompetence, then it can be said that the defendant's pleas were not voluntary. People v. Correa (1985), 108 Ill. 2d 541, 548-49, 92 Ill. Dec. 496, 485 N.E.2d 307; see also McMann v. Richardson (1970), 397 U.S. 759, 770-71, 25 L. Ed. 2d 763, 773, 90 S. Ct. 1441, 1448-49.

Of course, a defendant may enter a plea of guilty because of some erroneous advice by his counsel; however, this fact alone does not defeat the voluntary nature of the plea. ( Correa, 108 Ill. 2d at 548-49.)

Page 475

Whether a plea of guilty is unintelligent and vulnerable depends not on whether a court would retrospectively consider counsel's advice to be right or wrong, but whether that advice was within the range of competence demanded of attorneys in criminal cases. ( Correa, 108 Ill. 2d at 553, citing McMann, 397 U.S. at 770-71, 25 L. Ed. 2d at 773, 90 S. Ct. at 1448-49.) A plea based on reasonably competent advice is an intelligent plea not open to attack on the grounds that counsel erred in his judgment. McMann, 397 U.S. at 770, 25 L. Ed. 2d at 773, 90 S. Ct. at 1448.

In this case, counsel advised defendant to enter a plea of guilty to the charges pending against him. Part and parcel of that advice was counsel's decision not to pursue plea negotiations. This decision, as opposed to counsel's advice per se, now forms the basis of defendant's ineffectiveness claim. Therefore, proper resolution of defendant's ineffectiveness claim requires consideration of a defense attorney's duty to engage in plea negotiations. First, we set ...


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