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09/18/97 PEOPLE STATE ILLINOIS v. KEVIN L. CURRY

September 18, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
KEVIN L. CURRY, APPELLANT.



The Honorable Justice McMORROW delivered the opinion of the court.

The opinion of the court was delivered by: Mcmorrow

The Honorable Justice McMORROW delivered the opinion of the court:

The defendant, Kevin L. Curry, was charged by information with one count of residential burglary (720 ILCS 5/19-3 (West 1992)) and two counts of criminal sexual assault (720 ILCS 5/12-13(a)(2) (West 1992)). During plea negotiations prior to trial, the State offered to dismiss the count of residential burglary and one of the two counts of criminal sexual assault if defendant agreed to plead guilty to the remaining count of criminal sexual assault and accept the State's recommendation that he receive a sentence of 4 1/2 years' imprisonment. Defendant rejected the plea offer and was subsequently convicted by a jury of the crimes alleged in all three counts. The trial judge, relying on section 5-8-4(a) of the Unified Code of Corrections (Code) (730 ILCS 5/5-8-4(a) (West 1992)), sentenced defendant to three consecutive terms of four years' imprisonment. The appellate court affirmed defendant's convictions and sentences. No. 4-95-0531 (unpublished order under Supreme Court Rule 23). We granted defendant's petition for leave to appeal. 155 Ill. 2d R. 315.

Two issues are presented for our review: whether defendant was denied his right to effective assistance of counsel during plea negotiations with the State when his counsel failed to advise him that he would receive mandatory consecutive sentences under section 5-8-4(a) of the Code if convicted of more than one of the counts with which he was charged; and whether, irrespective of defense counsel's degree of effectiveness, the trial court erred in imposing consecutive sentences for defendant's convictions.

Background

Defendant's convictions stem from the sexual assault of his next-door neighbor, M.W. At trial, M.W. testified that she went to bed in her home at approximately 1:45 a.m. on April 30, 1994. Sometime thereafter, she felt someone touch her shoulders, chest, stomach and legs. The sensation was not strong enough, however, to awaken her. Instead, "it was like a dream. [She] felt feather touches. It wasn't enough touches to make [her] think reality."

M.W. felt her assailant sexually assault her. She then felt the assailant begin to engage in sexual intercourse. Throughout this time, M.W. believed that she was dreaming. While the assailant was on top of her, M.W. heard him ask her if she "wanted to know who this was" or if she "even knew who this was." The assailant then said that he was Kevin Curry. As these statements were made, M.W. woke up.

When she awoke, M.W. jumped out of bed and retreated to a corner of the bedroom. M.W. was crying and terrified. She told defendant that if he did not leave immediately, she would tell his brother (with whom defendant lived) what he had done. After defendant left, M.W. dressed herself and ran to a neighbor's house where the police were summoned. They arrived a short time later. After speaking to the police, M.W. went to the hospital and was examined. M.W. suffered no physical injuries and was not admitted to the hospital.

M.W. further testified that she knew who defendant was prior to April 30, 1994, because defendant was a friend of her former husband and a brother of her next-door neighbor. However, M.W. had never had a sustained, one-on-one conversation with defendant, whom she considered to be an acquaintance rather than a friend. M.W. stated that she never gave defendant permission to enter her house on April 30, 1994, and never consented to his touching of her body.

Defendant testified that in April of 1994 he was living in his brother's home, located next door to M.W.'s home. Defendant knew M.W. because he was a close friend of her former husband. Defendant had spoken to M.W. quite often and considered her to be a good friend.

Defendant stated that he spent the night of April 29, 1994, at his brother's home, drinking beer with friends and playing cards. Around midnight, defendant left to visit other friends. Approximately two hours later, defendant returned to his brother's house. He then sat on the porch by himself and drank beer. Defendant testified that during the night of April 29, 1994, and early morning of April 30, 1994, he consumed at least 15 beers.

Defendant explained that he soon grew tired of sitting on the porch by himself. He decided to go to M.W.'s house to see if she "wanted to get up and have a beer and talk." Defendant went to the house and knocked on the front door three times. No one answered. Defendant opened the unlocked door and called for M.W. When M.W. did not respond, defendant went into the house and then into M.W.'s bedroom. Defendant sat down on the bed, grabbed M.W.'s arm and shook her, saying "[M.], wake up." M.W. awoke, sat up in bed and asked who was there. Defendant told her who he was. M.W. asked what time it was, turned on a lamp and looked at her clock.

According to defendant, the two conversed and then began to kiss. Defendant's belief at the time was that M.W. wanted to engage in sexual intercourse. Defendant testified that he committed the sexual acts described by M.W. in her testimony. Defendant stated that, as he began to engage in sexual intercourse, M.W. asked who he was. Defendant responded, "This is Kevin Curry from next door." M.W. then screamed. Defendant got off the bed and had no further physical contact with M.W. Defendant told her he was sorry and that he thought she knew who he was. Defendant got dressed, went home and went to bed. He was awakened between 5 a.m. and 6 a.m. when the police arrived.

Defendant testified that he did not attempt to have sexual relations with M.W. against her will. To defendant, it appeared that M.W. was capable of agreeing to what happened between the two of them because she was awake and talking. Two police officers testified that on April 30, 1994, defendant gave statements to them which were consistent with his trial testimony.

Defendant was convicted of one count of residential burglary and two counts of criminal sexual assault. Both of these offenses are Class 1 felonies (see 720 ILCS 5/19-3(b), 12-13(b) (West 1992)) and have a statutory sentencing range of not less than 4 and not more than 15 years' imprisonment. 730 ILCS 5/5-8-1(a)(4) (West 1992). At defendant's sentencing hearing held on February 2, 1995, the State's Attorney recommended that defendant receive concurrent terms of eight years' imprisonment. The trial judge advised the State's Attorney that defendant's convictions for criminal sexual assault triggered the mandatory consecutive sentencing provision of section 5-8-4(a) of the Code and, therefore, that all three of defendant's sentences had to run consecutively. Both the State's Attorney and defense counsel indicated that they were unaware that consecutive sentences were mandatory for defendant's offenses. The trial judge reiterated that the law required consecutive sentences and, accordingly, sentenced defendant to three consecutive terms of four years' imprisonment, for a total term of imprisonment of 12 years.

Subsequently, on March 1, 1995, defendant filed a motion to reconsider his sentence. In the motion, defendant maintained that the trial judge erred in concluding that consecutive sentences were mandatory for his convictions. Defendant also asserted that he was denied important sentencing information during plea negotiations with the State. According to defendant, prior to trial, the State offered to dismiss the residential burglary charge and one of the two counts of criminal sexual assault if he would agree to plead guilty to the remaining count of criminal sexual assault and accept the State's recommendation that he receive a sentence of 4 1/2 years' imprisonment. Defendant asserted that he rejected this offer because his attorney mistakenly advised him that he would face only concurrent sentences of approximately four years' imprisonment if he were convicted of any of the three charges. In support of these latter assertions, defendant attached to the motion an affidavit from his trial attorney and a stipulation. In the affidavit, defense counsel confirmed that the State had made the plea offer. Counsel also stated that he had not informed defendant that he could receive consecutive sentences if convicted of the offenses with which he was charged. The stipulation attached to the motion to reconsider stated that if defendant were called to testify, he would testify that if he had known that consecutive sentences were mandatory, he would have accepted the State's plea offer.

Following a hearing held on July 3, 1995, the trial judge denied defendant's motion to reconsider his sentence. Although the trial judge expressed reluctance to sentence defendant to 12 years in prison, he adhered to his conclusion that consecutive sentences were mandatory for defendant's convictions under the law. The trial judge also concluded that it was irrelevant whether defendant was given accurate sentencing information during plea negotiations because defendant did not enter a guilty plea and because defendant had received all the rights to which he was entitled, including the right to a jury trial.

On appeal, defendant argued, inter alia, that he received ineffective assistance of counsel during plea negotiations with the State, and that consecutive sentences were not mandatory for his offenses under section 5-8-4(a). The appellate court rejected defendant's claim of ineffective assistance of counsel for reasons other than those offered by the trial judge. According to the appellate court, the case law interpreting section 5-8-4(a) which existed at the time of defendant's plea negotiations precluded a finding that defense counsel's performance was deficient. The court also held that, based on its recent decision in People v. Childs, 278 Ill. App. 3d 65, 214 Ill. Dec. 807, 662 N.E.2d 161 (1996), consecutive sentences were mandatory for all three of defendant's convictions. This appeal followed.

Analysis

Before this court, defendant repeats the principal arguments which he made in the appellate court. Defendant asserts that he was denied effective assistance of counsel during plea negotiations with the State. Defendant also contends that irrespective of whether he received ineffective assistance of counsel, the trial judge erred in sentencing him to consecutive sentences for all three of his convictions because mandatory consecutive sentences are not required under section 5-8-4(a) of the Code.

I

In People v. Whitfield, 40 Ill. 2d 308, 239 N.E.2d 850 (1968), this court held that an attorney's failure to disclose a plea offer to his or her client may give rise to a claim of a constitutional violation, even though the client subsequently receives a fair trial. This general principle has been widely adopted. See, e.g., People v. Ferguson, 90 Ill. App. 3d 416, 45 Ill. Dec. 802, 413 N.E.2d 135 (1980); United States v. Rodriguez, 929 F.2d 747, 752-53 (1st Cir. 1991); Johnson v. Duckworth, 793 F.2d 898, 902 (7th Cir. 1986); United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (3d Cir 1982); Lloyd v. State, 258 Ga. 645, 647, 373 S.E.2d 1, 3 (1988); Lyles v. State, 178 Ind. App. 398, 401, 382 N.E.2d 991, 994 (1978); State v. Simmons, 65 N.C. App. 294, 300, 309 S.E.2d 493, 497 (1983).

In the case at bar, defendant is not contending that his attorney failed to disclose the State's plea offer. Instead, defendant maintains that, but for his attorney's ineffective assistance during plea negotiations with the State, he would have accepted the plea offer and avoided trial. Although this specific situation was not addressed in Whitfield, it has been well established that the right to effective assistance of counsel extends to the decision to reject a plea offer, even if the defendant subsequently receives a fair trial. See, e.g., People v. Blommaert, 237 Ill. App. 3d 811, 178 Ill. Dec. 531, 604 N.E.2d 1054 (1992); Judge v. State of Carolina, 321 S.C. 554, , 471 S.E.2d 146, 148-49 (1996); In re Alvernaz, 2 Cal. 4th 924, 934, 830 P.2d 747, 753-54, 8 Cal. Rptr. 2d 713, 719-20 (1992); United States v. Day, 969 F.2d 39 (3d Cir. 1992); Toro v. Fairman, 940 F.2d 1065, 1067 (7th Cir. 1991); Lewandowski v. Makel, 949 F.2d 884 (6th Cir. 1991); Turner v. Tennessee, 858 F.2d 1201, 1205 (6th Cir. 1988), vacated on other grounds, 492 U.S. 902, 106 L. Ed. 2d 559, 109 S. Ct. 3208 (1989); Beckham v. Wainwright, 639 F.2d 262, 265-66 (5th Cir. 1981); Williams v. State, 326 Md. 367, 605 A.2d 103 (1992); Larson v. State, 104 Nev. 691 766 P.2d 261 (1988); Commonwealth v. Napper, 254 Pa. Super. 54, 385 A.2d 521 (1978); but see People v. Russell, 247 Ill. App. 3d 907, 187 Ill. Dec. 377, 617 N.E.2d 834 (1993).

In reviewing a claim of ineffective assistance of counsel, we apply the familiar two-part test established in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) (adopted by this court in People v. Albanese, 104 Ill. 2d 504, 525-26, 85 Ill. Dec. 441, 473 N.E.2d 1246 (1984)). To prevail under Strickland, a defendant must show that his attorney's assistance was both deficient and prejudicial. More precisely, a defendant must show that his attorney's assistance was objectively unreasonable under prevailing professional norms, and that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687, 694, 80 L. Ed. 2d at 693, 698, 104 S. Ct. at 2064, ...


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