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People v. Lara

December 22, 2000

PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
DANIEL FRANK LARA,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois No. 93--CF--832 Honorable John O'Shea, Judge Presiding

The opinion of the court was delivered by: Justice Holdridge

Not Released For Publication

PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
DANIEL FRANK LARA,
DEFENDANT-APPELLANT.

Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois No. 93--CF--832 Honorable John O'Shea, Judge Presiding

The opinion of the court was delivered by: Justice Holdridge

A Rock Island jury convicted the defendant, Daniel Frank Lara, of residential burglary (720 ILCS 5/19--3 (West 1992)). The court subsequently imposed a 30-year, extended-term prison sentence. On direct appeal, the defendant challenged the severity of his sentence and this court affirmed. People v. Lara, No. 3--94--0250 (1995) (unpublished order under Supreme Court Rule 23).

 Prior to the disposition of his direct appeal, the defendant filed a pro se petition for post-conviction relief. The circuit court dismissed the petition. The defendant appeals and we affirm.

FACTUAL BACKGROUND

On October 17, 1994, the defendant filed a four-part pro se petition for post-conviction relief and requested appointment of counsel. He claimed that: (A) he was deprived of a fair trial; (B) his guilt was not proven beyond a reasonable doubt; (C) he was deprived of effective assistance of counsel; and (D) he was denied a fair sentencing hearing. After 90 days had passed, the State moved to dismiss the petition. On August 3, 1995, the circuit court appointed counsel for the defendant.

Appointed counsel took no action on the petition. Subsequently, on July 25, 1997, the defendant filed a motion for leave to amend, seeking to supplement his claim of ineffective assistance of trial counsel with allegations that counsel had failed to advise him of the possibility of an extended term sentence.

The record shows that on July 30, 1997, the circuit court dismissed with prejudice parts A, B, and D of the petition, finding those allegations to be "frivolous and patently without merit." The court also dismissed part C of the petition, but gave the defendant leave to amend that part and appointed new post-conviction counsel. The court further granted an evidentiary hearing on the ineffective assistance of counsel claim raised in the defendant's July 25th motion to amend the petition.

Appointed counsel subsequently certified that evidence would not support the defendant's claim on part C of his original petition, and that part was dismissed.

On November 10, 1998, an evidentiary hearing was held on the defendant's claim that trial counsel provided ineffective assistance by failing to advise the defendant of the possibility of an extended-term sentence. The defendant testified that trial counsel told him that the State offered 10 years for a guilty plea and that if he went to trial the court would not sentence him to more than 15 years. He said counsel never informed him that he could receive a maximum extended-term sentence of 30 years.

Probation Officer Charles Reynolds, who prepared the defendant's pre-sentence investigation report, testified that the defendant told him that the maximum sentence he could get was 18 years, and the State had offered 15 years. The defendant told Reynolds that this was why he had taken the case to trial. Later, after the defendant's 30-year sentence was imposed, Reynolds spoke ...


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