Appeal from Circuit Court of McLean County No. 89CF20 Honorable W. Charles Witte, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
the opinion of the court:
In September 1989, a jury convicted defendant, Todd L. Frieberg, of controlled substance trafficking (Ill. Rev. Stat. 1987, ch. 56½, par. 1401.1) and possession of a controlled substance (more than 900 grams of a substance containing cocaine) (Ill. Rev. Stat. 1987, ch. 56½, par. 1402). The trial court later sentenced him to 30 years in prison on the trafficking conviction and 15 years in prison on the possession conviction, to be served concurrently.
In October 1990, this court affirmed defendant's convictions and sentences (see People v. Frieberg, 202 Ill. App. 3d 1115, 593 N.E.2d 1178 (1990)). The supreme court granted defendant's petition for leave to appeal, and in March 1992, that court also affirmed defendant's convictions and sentences (see People v. Frieberg, 147 Ill. 2d 326, 589 N.E.2d 508 (1992)). In November 1992, defendant filed a pro se petition for post-conviction relief under the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1989, ch. 38, par. 122-1 et seq. (now 725 ILCS 5/122-1 et seq. (West 1992))). In December 1992, the trial court appointed post-conviction counsel to represent defendant and granted leave to amend defendant's petition.
In April 1997, defendant's post-conviction counsel filed an amended petition, alleging numerous constitutional violations, including that (1) defendant was denied a fair trial because a juror received an "unauthorized communication" during trial; and (2) defendant's trial counsel, J. Steven Beckett, provided ineffective assistance of counsel. During February 1998, the trial court granted part of the State's motion to dismiss the amended petition and dismissed some claims without conducting an evidentiary hearing. However, the court conducted an evidentiary hearing on defendant's claim of ineffective assistance of counsel and subsequently denied that portion of defendant's amended post-conviction petition.
Defendant appeals, arguing that the trial court erred by (1) dismissing without an evidentiary hearing defendant's claim that he was denied a fair trial when one juror received an "unauthorized communication" during trial, and (2) denying the remainder of his amended post-conviction petition following an evidentiary hearing. Defendant contends that the record shows he received ineffective assistance of trial counsel when Beckett (a) failed to advise defendant of the potential consequences of rejecting the State's plea offer, (b) usurped defendant's right to choose whether to accept the plea offer, and (c) usurped defendant's constitutional right to choose whether to testify at trial. We affirm.
Defendant's amended post-conviction petition alleged the following: (1) he was denied a fair trial when one juror received an "unauthorized communication" during trial; (2) he was denied a fair trial when jurors read and discussed news accounts of his trial; (3) his 30-year prison sentence and $50,000 fine constituted an "illegal jury tariff" because the trial court imposed that sentence on defendant due to "his continued assertion of his right to a jury trial even after the State offered [him] a plea to a Class 4 [f]elony with probation and fine"; (4) the controlled substance trafficking statute (Ill Rev. Stat. 1987, ch. 56½, par. 1401.1) was vague and confused the jury; (5) Beckett provided ineffective assistance of counsel during trial by (a) failing to file a motion in imine requesting that the court bar the prosecution from commenting on defendant's assertion of his right to counsel during police interrogation, (b) "opening the door to comment on this suppressed evidence by an ineptly phrased, vague[,] and open [-]ended question" to a witness, (c) "by delving into the contents of the suppressed statement" at trial, (d) failing to inform defendant that he did not have to testify on his own behalf at trial, and (e) failing to challenge a search warrant; (6) the cumulative effect of Beckett's trial errors denied defendant effective assistance of counsel and a fair trial; and (7) defendant was denied effective assistance of appellate counsel because Beckett "labored under a per se conflict" because he could not claim his own ineffectiveness. In February 1998, the court dismissed defendant's first four claims without conducting an evidentiary hearing. However, the court conducted an evidentiary hearing on defendant's claims of ineffective assistance of counsel. We discuss the evidence presented at the hearing only to the extent necessary to put defendant's arguments in context.
Lewis Frieberg, defendant's father, testified on defendant's behalf that he hired Beckett and another attorney to represent defendant. Although Lewis testified that Beckett never advised defendant that he had a constitutional right not to testify on his own behalf, Lewis acknowledged that he was not present during every conversation between defendant and Beckett.
Lewis also testified in an offer of proof that around the second or third day of defendant's trial, Beckett told defendant and defendant's parents that the State had offered a "Class 4 [felony] plea." Beckett also told them that the only reason the assistant State's Attorney had made the plea offer was because he knew defendant was winning the case. Lewis then stated the following:
"[Beckett] said he wasn't here to plea[d] his cases, that we, you know, should go on with the trial and then he gave us a few minutes. My wife said, [`]can we think about it for awhile,['] and he said, [`]no, we have to know right now.[']"
Lewis also stated that defendant, Lewis, and defendant's mother "just answered [Beckett] right there. We just said okay."
On cross-examination during the offer of proof, Lewis testified that after Beckett informed defendant and defendant's parents of the State's plea offer, Beckett told them they needed to make a decision.
Carolyn Frieberg, defendant's mother, testified on defendant's behalf that she was present during meetings between defendant and Beckett, and Beckett was the "decision maker." Carolyn stated that Beckett did not advise defendant of his constitutional right not to testify on his own behalf.
Carolyn also testified in an offer of proof that around the third day of defendant's trial, Beckett told defendant and his parents that the State had offered a plea bargain. Carolyn stated that when she, defendant, and Lewis asked if they could wait and think about it, Beckett told them that he does not usually plea bargain his cases. Carolyn also stated that "we just solely left [the decision] up to [Beckett] because we don't know anything about the law."
On cross-examination during the offer of proof, Carolyn testified, in pertinent part, as follows:
"Q. [Assistant State's Attorney:] [Beckett] made a recommendation of what his position was; would that be correct?
A. [Carolyn:] Yes, I guess.
Q. And you ultimately made a decision?
On redirect examination, Carolyn testified that they followed Beckett's recommendation regarding whether defendant should accept the State's plea offer.
Defendant testified on his own behalf that until the third day of his trial, Beckett had never discussed whether defendant would testify. Defendant stated Beckett never advised defendant regarding his constitutional right to choose whether to testify at trial. Beckett never asked defendant whether he wanted to testify, and Beckett ultimately decided that defendant would testify. Defendant also stated that had he known of his constitutional right not to testify, he "certainly would have given it some thought," but he did not know whether he would have chosen to testify.
On cross-examination, defendant testified that prior to the start of his trial, Beckett "probably" discussed whether defendant was going to testify at trial. Defendant acknowledged being present during the trial court's pretrial admonishments to the jury; however, he denied hearing the ...