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11/06/97 PEOPLE STATE ILLINOIS v. DANIEL W. DAVISON

November 6, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DANIEL W. DAVISON, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Vermilion County. No. 91CF224. Honorable Thomas J. Fahey, Judge Presiding.

Released for Publication December 4, 1997. As Corrected January 8, 1998.

Presiding Justice Steigmann delivered the opinion of the court. Green, J., concurs. Cook, J., specially concurs.

The opinion of the court was delivered by: Steigmann

PRESIDING JUSTICE STEIGMANN delivered the opinion of the court:

In August 1996, defendant, Daniel W. Davison, filed pro se a petition for postconviction relief, alleging various violations of his constitutional rights. In September 1996, the trial court dismissed his petition as patently without merit, pursuant to section 122-2.1(a)(2) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-2.1(a)(2) (West 1994)). Defendant appeals, arguing that the court erred by summarily dismissing his petition. We affirm.

I. BACKGROUND

In July 1991, the State charged defendant by information with three counts of home invasion (Ill. Rev. Stat. 1991 ch. 38, par. 12-11); two counts of attempt (aggravated criminal sexual assault) (Ill. Rev. Stat. 1991, ch. 38, par. 8-4, 12-14); one count of criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12-13(a)(1)); one count of aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12-14(a)(1)); and one count of criminal trespass to a residence (Ill. Rev. Stat. 1991, ch. 38, par. 19-4). Pursuant to a plea agreement, defendant pleaded guilty to all of these charges except criminal trespass to a residence. In exchange for defendant's pleading guilty, the State dismissed the charge of criminal trespass to a residence and charges in a pending misdemeanor case (No. 91-CM-616). The State also agreed to offer a 90-year cap on imprisonment.

In July 1992, the trial court accepted defendant's guilty plea and sentenced him to 15 years on three separate counts of home invasion and 20 years for aggravated criminal sexual assault, with all sentences to be served consecutively, totaling 65 years in prison. (We note that the home invasion counts involved the homes of three different women.) The court did not enter judgment as to the remaining counts.

Defendant did not appeal his guilty plea or sentences, but in August 1996, after several time extensions, he filed pro se a petition for postconviction relief, alleging his constitutional rights were violated because he received ineffective assistance of counsel. In September 1996, the trial court dismissed his petition as patently without merit, pursuant to section 122-2.1(a)(2) of the Act (725 ILCS 5/122-2.1(a)(2) (West 1994)), and this appeal followed.

II. ANALYSIS

On appeal, defendant argues that the trial court erred by dismissing his pro se petition because it presented the gist of a meritorious claim that he was denied his constitutional right to effective assistance of trial counsel (U.S. Const., amends. VI, XIV). Specifically, defendant contends that his petition showed he received ineffective assistance of counsel for the following reasons: his trial counsel (1) failed to challenge the factual basis and sufficiency of the charges in counts VI and VIII, charging home invasion and aggravated criminal sexual assault, respectively; (2) refused to allow defendant to read the discovery materials the State provided to defense counsel; (3) failed to object to or file a motion in limine barring the use of defendant's Veteran's Administration Medical Center (VAMC) records, which contained information about crimes with which defendant had never been charged; and (4) failed to advise defendant that he could have pleaded guilty but mentally ill.

A postconviction proceeding brought under the Act (725 ILCS 5/122-1 et seq. (West 1994)) constitutes a collateral attack on a judgment of conviction. The Act permits the trial court to summarily dismiss a nonmeritorious petition. 725 ILCS 5/122-2.1(a)(2) (West 1994)). People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102, 106, 221 Ill. Dec. 195 (1996); People v. Lemons, 242 Ill. App. 3d 941, 944, 613 N.E.2d 1234, 1238, 184 Ill. Dec. 642 (1993); People v. Dredge, 148 Ill. App. 3d 911, 913, 500 N.E.2d 445, 446-47, 102 Ill. Dec. 552 (1986).

To establish a claim of ineffective assistance of trial counsel, a defendant must satisfy the standards set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). First, the defendant must prove that counsel made errors so serious, and counsel's performance was so deficient, that counsel was not functioning as the "counsel" guaranteed by the sixth amendment. To show that counsel's conduct was deficient, the defendant must overcome the strong presumption that the challenged action or lack of action might have been the product of sound trial strategy. People v. Griffin, 1997 Ill. LEXIS 407 at *5, No. 78812, (September 11, 1997), Ill. 2d , , N.E.2d , .

Second, the defendant must establish prejudice--that is, he must prove that a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The prejudice prong of Strickland entails more than an "outcome-determinative" test. Griffin, at *6, No. 78812, Ill. 2d at , N.E.2d at . The defendant must also show that counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Griffin, 1997 Ill. LEXIS 407 at *6, No. 78812, Ill. 2d at , N.E.2d at .

When a guilty plea is challenged on ineffective assistance grounds, the prejudice prong of Strickland is satisfied if a reasonable probability exists that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 88 L. Ed. 2d 203, 210, 106 S. Ct. 366, 370 (1985); People v. Bien, 277 Ill. App. 3d 744, 751, 661 N.E.2d 511, 516, 214 Ill. Dec. 657 (1996). The record should also demonstrate a reasonable probability that, but for counsel's errors, the defendant would have rejected the plea arrangement. People v. Pugh, 157 Ill. 2d 1, 15, 623 N.E.2d 255, 262, 191 Ill. Dec. 10 (1993).

If the ineffective assistance claim can be disposed of on the ground that the defendant did not suffer prejudice, a court need not decide whether counsel's performance was constitutionally deficient. Griffin, 1997 Ill. LEXIS 407 at *6, No. 78812, Ill. 2d at , N.E.2d at .

A. Counsel's Failure To Challenge Counts VI and VIII

Defendant first argues that his trial counsel erred by failing to challenge the factual basis and the sufficiency of the charges in counts VI and VIII. We disagree.

1. Count VI (Home Invasion)

Section 12-11(a) of the Criminal Code of 1961 (Code) provides that a person commits home invasion when he knowingly enters another's dwelling place when he knows or has reason to know that one or more persons are present, and (1) while armed with a dangerous weapon uses force or threatens the imminent use of force upon any person within the dwelling place whether or not injury occurs, or (2) intentionally causes any injury to any person or ...


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