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People v. Miller

Illinois Supreme Court


December 19, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
JOSEPH R. MILLER, APPELLANT.

The opinion of the court was delivered by: Justice Thomas

No. 89408-Agenda 4-September 2002.

Defendant, Joseph R. Miller, appeals from the dismissal of his post-conviction petition without an evidentiary hearing. We affirm.

BACKGROUND

In the late 1970s, defendant murdered two women and disposed of their bodies by the side of a road. He was convicted of these murders and sentenced to the Department of Corrections (DOC). In April 1993, he was released from prison. Five months later, he killed three more women and disposed of their bodies in drainage ditches. Following a jury trial in the circuit court of Peoria County, defendant was convicted of six counts of first degree murder (720 ILCS 5/9-1(a) (West 1992)) for the later crimes. The same jury found that defendant was eligible for the death penalty because he was convicted of killing more than one person (720 ILCS 5/9-1(b)(3) (West 1992)), and that there were no mitigating factors sufficient to preclude the imposition of the death penalty. Accordingly, the trial court sentenced defendant to death. On direct appeal, we affirmed defendant's convictions and sentence. People v. Miller, 173 Ill. 2d 167 (1996). The United States Supreme Court denied defendant's petition for a writ of certiorari on March 31, 1997. Miller v. Illinois, 520 U.S. 1157, 137 L. Ed. 2d 497, 117 S. Ct. 1338 (1997).

On December 29, 1995, defendant filed a pro se petition for post-conviction relief. In the petition, defendant argued that his trial counsel was ineffective in two respects. First, defendant contended that, during plea negotiations, his attorney failed to explain to him that a sentence of natural life was the most lenient sentence he could receive. Defendant had rejected the State's offer of life imprisonment in exchange for his guilty plea. Defendant claimed that, if his attorney had explained to him that natural life was the most lenient sentence he could have received, he would have accepted the State's offer. Defendant supported this contention with his own affidavit. Second, defendant contended that his attorney was ineffective for failing to cross-examine two of the State's witnesses about their criminal involvement in the sale of stolen property. Defendant concluded that these witnesses must have been promised leniency in exchange for their testimony, and the State did not disclose such a promise to the defense. Defendant supported this claim with police reports showing that these two witnesses admitted to being involved in the sale of stolen property with defendant. Defendant contended both that his due process rights were violated by the State's failure to disclose the promise of leniency and that his attorney was ineffective for failing to cross-examine the witnesses about the promise of leniency.

The trial court appointed counsel to represent defendant, and counsel filed an amended petition on defendant's behalf. The amended petition incorporated by reference defendant's pro se petition and added the additional claim that defendant's trial counsel was ineffective for failing to investigate and present available mitigating evidence. Defendant supported this contention with evaluations conducted by Dr. Michael Gelbort, a clinical psychologist, and Dr. Fred Berlin, an associate professor at Johns Hopkins University School of Medicine. Dr. Berlin's report concluded that defendant was a sexual sadist and that this malady impaired his volitional capabilities. Dr. Gelbort concluded that defendant suffered from neuro-psychological impairment and dysfunction reflective of brain dysfunction or damage.

The State moved to dismiss the petition without an evidentiary hearing. In the motion, the State contended that all of defendant's issues were waived because they could have been raised on direct appeal. The State further argued that defendant had failed to meet his burden of showing that he had experienced a substantial denial of his constitutional rights. The trial court granted the State's motion to dismiss. The court concluded that defendant had failed to show that trial counsel's performance fell below an objective standard of reasonableness. Defendant appealed directly to this court. 134 Ill. 2d R. 651(c).

ANALYSIS

A defendant is not entitled to an evidentiary hearing on a post-conviction petition as a matter of course. Rather, a hearing is required only when the allegations of the petition, supported by the trial record and the accompanying affidavits, make a substantial showing of a violation of a constitutional right. People v. Hobley, 182 Ill. 2d 404, 427-28 (1998). Considerations of waiver and res judicata limit the range of issues available to a post-conviction petitioner to constitutional matters that have not been, and could not have been, previously adjudicated. People v. Tenner, 175 Ill. 2d 372, 378 (1997). Rulings on issues that were previously raised at trial or on direct appeal are res judicata, and issues that could have been raised, but were not, are waived. People v. Coleman, 168 Ill. 2d 509, 522 (1995). Where the State seeks dismissal of a post-conviction petition instead of filing an answer, its motion to dismiss assumes the truth of the allegations to which it is directed and questions only their legal sufficiency. People v. Ward, 187 Ill. 2d 249, 255 (1999). If the circuit court determines that the petition should be dismissed without an evidentiary hearing, its judgment is subject to de novo review. People v. Coleman, 183 Ill. 2d 366, 387-88 (1998).

Ineffective Assistance of Counsel: Failure to Investigate and Present Mitigating Evidence

Defendant first argues that he received the ineffective assistance of counsel at the aggravation-mitigation phase of his capital sentencing hearing because his attorney failed to investigate and present available mitigating evidence. Defendant alleges that, had this evidence been considered by the jury, there is a reasonable probability that the jury would have concluded that sufficient mitigating evidence existed to preclude the death penalty.

To prevail on a claim of ineffectiveness of counsel at sentencing, a defendant must show that his attorney's performance fell below an objective standard of reasonableness and that, absent counsel's errors, there is a reasonable probability that the trier of fact would have concluded that the balance of aggravating and mitigating factors did not warrant the death penalty. People v. Henderson, 171 Ill. 2d 124, 145 (1996). Counsel has a duty to make reasonable investigations of potential sources of mitigating evidence to present at a capital sentencing hearing. People v. Towns, 182 Ill. 2d 491, 510 (1998). When made after a thorough investigation of the law and facts relevant to plausible options, strategic choices of what evidence to present are virtually unchallengeable. Towns, 182 Ill. 2d at 514; Strickland v. Washington, 466 U.S. 668, 690, 80 L. Ed. 2d 674, 695, 104 S. Ct. 2052, 2066 (1984). Choices made after less than complete investigation are reasonable to the extent that reasonable professional judgments support the limitations on investigation. Strickland, 466 U.S. at 691, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.

Before proceeding to the merits of this issue, we address the State's contention that the issue is waived. The State argues that this issue is waived because defendant could have raised it on direct appeal. We disagree. Defendant's argument depends on evidence outside the original trial record. Accordingly, defendant could not have raised it on direct appeal. People v. Orange, 168 Ill. 2d 138, 149 (1995).

The following evidence was presented to the jury at the aggravation-mitigation phase of the sentencing hearing. Jack Thurmon, a DOC parole agent, testified that he handled cases involving people who had been convicted of murder or a sex offense and were either homeless or going to a halfway house. Thurmon worked in the Peoria area, and his job responsibilities included deciding whether parolees could come to a specific region. Thurmon first encountered defendant while Thurmon was teaching parole school at the Illinois River Correctional Center. Defendant was serving time there for two murder convictions and an armed robbery conviction.

Thurmon received a parole residence plan from defendant. A residence plan states where the person plans to live after being paroled. Thurmon reviewed defendant's case and determined that defendant did not have any ties to the Peoria area, had no family in the area, and no prospective job in the area. Thurmon rejected placement in Peoria and requested that defendant be sent back to Cook County, which was his committing county. Defendant was paroled in April 1993 and was sent to a mission in Cook County. In September 1993, Thurmon learned that DOC had given defendant permission to move to Peoria.

On cross-examination, Thurmon testified that he had reviewed all of defendant's records, including a psychiatric consultation that defendant had at the Joliet Receiving Center in either 1977 or 1978. Thurmon acknowledged that the report stated that defendant said that he was fearful of killing people again because he could not control his behavior. The records did not indicate that defendant had received any psychiatric help from DOC. Thurmon was not aware of any other comments defendant had made about his inability to control his behavior.

Detective Lester Mustacchio, a police investigator for the Village of Skokie, testified that in 1977 he was assigned to investigate the homicide of Martha Kowalski. On November 4, 1977, he interviewed defendant at the Du Page County jail. The interview was tape recorded and transcribed. Mustacchio identified photographs of Kowalski's body that were taken where her body was found. The body was wrapped in a sleeping bag, tied with rope, and dumped in a ditch. Defendant participated freely in the interview and discussed both the Kowalski homicide and another one. Defendant signed his statement after it was transcribed. The jury was given a transcribed copy of defendant's statement, and the tape recording of the interview was also played for the jury.

In the statement, defendant details how, in October 1977, he picked up a woman and agreed to pay her for sex. Defendant took her back to his apartment and had sex with her. Afterwards, they argued about the amount of money he owed her. Defendant subdued her by strangling her and then took her to the bathtub and drowned her. He then wrapped her body in a sleeping bag, tied it up with rope, placed it in his car, and then disposed of it in a ditch.

Defendant then told about another prostitute that he had killed. In 1976, he picked up a prostitute and brought her back to his residence. Defendant claimed that he paid her for sex that night, but that she came back a few days later and wanted more money. Defendant then strangled her to death and wrapped her body in garbage bags, towels, sheets, and a blanket. He then tied the body with rope, placed it in his car, and dumped it by the side of the road in some bushes. Defendant's signature appeared at the bottom of each of the transcribed pages, and defendant stated on the tape that he signed the pages because they were his true statements.

The State then entered into evidence defendant's two certified convictions for murder and one for armed robbery. On November 29, 1977, defendant was convicted of the murders of Martha Kowalski and Ann Maxham and sentenced to concurrent terms of 15 to 30 years' imprisonment. In January 1978, defendant was convicted of armed robbery and sentenced to 4 to 8 years' imprisonment.

The defense called two witnesses in mitigation. Dr. Sohee Lee, a board-certified psychiatrist, testified that he met with defendant on three occasions. Before meeting with defendant, Dr. Lee reviewed a grand jury report, records from the DOC, and a psychiatric report. Dr. Lee determined that defendant probably suffered from disassociative amnesia and an antisocial personality. The disassociative amnesia could prevent defendant from recalling traumatic or stressful events in his life. According to Dr. Lee, people who suffer from the psychiatric maladies defendant suffered from generally have a history of being abused physically, emotionally, or sexually when they were young. Defendant suffered all three types of abuse during his upbringing.

Defendant was placed in different foster homes until he was six years old. During that time, he suffered physical and emotional abuse. Later, when defendant lived with his mother and stepfather, his stepfather physically abused him. Defendant's mother and stepfather had a chaotic relationship that involved drinking and physical and verbal abuse. Defendant began a sexual relationship with his mother when he was 13 years old. This continued until defendant left home. Defendant had additionally engaged in sexual touching and sexual intercourse with his two younger half-sisters.

Before the age of six, defendant was physically abused in his foster homes. After that, he was physically abused by his stepfather. Dr. Lee testified that defendant recounted an incident that occurred when defendant was 13 years old. Defendant tried to protect his mother when she was fighting with his stepfather, and his stepfather threw him into a wall. Defendant suffered a head injury in the right frontal area, and his head was still somewhat swollen in that area.

Dr. Lee testified that in 1977 or 1978 defendant was examined by psychiatrists and psychologists and they determined that he suffered from paranoid personality or borderline personality. One report indicated the possibility that defendant suffered from paranoid schizophrenia, and defendant was on antischizophrenic medication for a while. Dr. Lee explained that a person suffering from a borderline personality disorder would have difficulty controlling his emotions and anger, would get frustrated easily, and generally have an inability to control himself. A paranoid person would be suspicious and would have trouble trusting other people. A person suffering from an antisocial personality disorder would not care for other people's rights, would be very selfish, and would have difficulty keeping with the societal norms and laws. Such a person would lie for his own benefits or pleasure, would show no remorse for his actions, and would have a personality that was inflexible and hard to change.

Dr. Lee testified that the reports from the late 1970s indicated that defendant had expressed a desire for help and had also expressed the fear that he would do these things again if he did not get help. Defendant relayed the same concerns to Dr. Lee during his interview. Defendant claimed that he had asked for help when he was in the DOC. However, a report that Dr. Lee reviewed indicated that, after several sessions of counseling, defendant was not motivated and did not want to continue treatment. Dr. Lee testified that in September 1993 defendant was very happy and that he had friends who had helped him establish a life in Peoria.

Another board-certified psychiatrist, Dr. Robert Chapman, was also called to testify in mitigation. Dr. Chapman met with defendant for 3½ hours. In preparation for his meeting with defendant, Dr. Chapman reviewed case records and defendant's DOC psychiatric records. After meeting with defendant, Dr. Chapman diagnosed him as having disassociative disorder with multiple personality disorder type.

Dr. Chapman explained that a person who has a disassociative disorder will experience either a single event or multiple events in which he disassociates from reality. During this period, the person can lose time and not be able to remember what happened, or the person might have an experience in which he feels that he is outside himself looking at either himself or a situation as a different person. Multiple personality disorder is a specific subtype of disassociative disorder in which a person seems to possess more than one self or personality and can demonstrate a completely different set of personality traits, attitudes, and memory. As part of Dr. Chapman's examination of defendant, he was required to render an opinion on whether defendant was legally insane. Dr. Chapman concluded that defendant did not meet the criteria for legal insanity.

Defendant argues that his counsel was ineffective because he failed to investigate and present additional potential mitigating evidence. In support, defendant relies on the reports of Dr. Fred Berlin and Dr. Michael Gelbort, who evaluated defendant in 1999 in connection with the post-conviction proceeding.

Dr. Berlin evaluated defendant clinically for 4½ hours and also reviewed numerous background materials. He summarized his findings in a report that he sent to defendant's post-conviction counsel. Dr. Berlin concluded that defendant suffered from "sexual sadism," which is defined in the fourth revision of the Diagnostic and Statistical Manual of Mental Disorders as the presence of recurrent, intense sexually arousing fantasies, sexual urges, or behavior involving acts in which the psychological or physical suffering of another causes sexual excitement. The etiology of sexual sadism is not fully understood, but it is not the consequence of a volitional decision. In other words, defendant did not decide to experience intense, recurrent erotically arousing fantasies and urges of a sadistic nature, but rather discovered himself to be so afflicted. Biological factors could have brought on the affliction, or it could have been brought on by the sexual abuse by defendant's mother. At the time of the evaluation, defendant continued to be distressed by his inability to extrude recurrent pathological fantasies and urges from his consciousness.

Dr. Berlin further explained that defendant's sexual sadism was intimately linked to his criminal conduct. Dr. Berlin's review of the evidence in defendant's cases led him to believe that defendant used far more than the minimum force necessary to consummate the sexual act. Dr. Berlin believed this was so because defendant had great difficulty even achieving an erection absent the pain and suffering of another individual. Although, intellectually, defendant would like to be able to have sex in a consensual way, his disorder makes it nearly impossible for him to do so. Dr. Berlin noted that this had been documented as early as 1973 in a report by a psychologist that stated that defendant "is not capable of obtaining an erection without doing physical harm to his sex partner." The same report noted that defendant was fearful of killing other people and that he could not control this behavior once it started.

Dr. Berlin elaborated on how sexual sadism impairs volitional capabilities. The sex drive is biologically based and exists in order to ensure preservation of the human race. The sexual drive is continuous, and once the sexual urge is satisfied, the person will again crave satiation. Even when the sex drive becomes aimed at sadistic rather than consenting behavior, it will still crave satiation. Dr. Berlin likened the sexual sadist to an unsuccessful dieter in that willpower alone is not enough to bring the behavior under control. Masturbation, rather than defusing sexual tensions, might actually serve to further whet the appetite of the sexual sadist. Dr. Berlin stated that it was unfortunate that defendant did not receive adequate treatment before being released from prison, including the administration of drugs to control his sex drive.

In summary, Dr. Berlin concluded that defendant's volitional capabilities were impaired secondary to sexual sadism and that such volitional impairment might have been considered a mitigating factor by the jury. As early as 1978, defendant told a correctional counselor that he could not control his impulses and that he could still "snap and hurt people at any minute." Dr. Berlin concluded that defendant committed his crimes under the influence of an extreme mental disturbance. Additionally, Dr. Berlin stated that these observations or conclusions could have been made at defendant's 1993 sentencing hearing by himself or another qualified health professional.

Dr. Michael Gelbort conducted a neuropsychological evaluation of defendant in connection with the post-conviction proceedings. Dr. Gelbort summarized his findings in a report that he sent to defendant's attorneys. Dr. Gelbort states in the report that defendant has a positive history for past acquired brain injury and thus was deemed to be an appropriate candidate for neuropsychological evaluation. Defendant related to Dr. Gelbort that he was hit by a car while riding his bike at age eight. Defendant remembered "flying through the air" before striking either the ground or another car. Additionally, defendant's stepfather hit him on the right side of his forehead when he was between the ages of 12 and 13. Defendant lost consciousness for several hours and awoke in the hospital, where he spent four days. Defendant was in an automobile accident when he was 13 and awoke with the car upside down. Defendant was in the hospital several weeks after that injury.

Dr. Gelbort administered numerous tests to defendant, and determined that defendant had a full scale IQ of 85. Defendant read and spelled at a fifth-grade level, and his math skills were at the sixth-grade level. The test scores were below what would be expected based on defendant's intellectual level of functioning, and Dr. Gelbort attributed this to the deviant home life defendant experienced, with frequent moves and a lack of emphasis or focus on school attendance. Tests of memory and learning showed that defendant had difficulties with mental control. This suggested that defendant's ability to focus and maintain the focus of his cognitive operations was significantly impaired.

Tests of higher cognitive ability indicated that defendant had pathological slowing in information processing speed. The tests showed that defendant was in the impaired range. Defendant had trouble grasping principles, understanding concepts, and generalizing from one situation to another in tasks in which he had learned material. Defendant's frontal lobe functions showed mild to moderate impairment with inefficiency and slowed reasoning, as well as an ability to grasp more complex concepts.

Dr. Gelbort concluded that defendant showed "a pattern of overall neuropsychological dysfunction which is best explained by frontal lobe impairments which is consistent with the injuries he sustained over time." Dr. Gelbort stated that there was strong support for performing "additional specialized neurological work-up." Dr. Gelbort believed that defendant showed indications of impairment and dysfunction reflective of brain dysfunction or damage, and that additional testing was the next step for an adequate understanding of defendant's medical and neuropsychological condition and functioning.

After reviewing the record, the post-conviction petition, and the material attached to the petition, we must conclude that defendant cannot meet either prong of the Strickland test. First, defendant's petition and the accompanying materials do not suggest that defense counsel's performance at sentencing fell below an objective standard of reasonableness. Defendant essentially acknowledges that he does not know what investigation into mitigation his attorney conducted. What the record does show is that his attorney called two board-certified psychiatrists to testify to defendant's psychological problems and also gave a lengthy and impassioned argument to the jury in which he repeatedly asked the jurors to show mercy to the defendant. *fn1 Together, the two psychiatrists testified that defendant suffered from disassociative amnesia, an antisocial personality, paranoid or borderline personality, disassociative disorder with multiple personality disorder type, and possibly paranoid schizophrenia.

In his brief, defendant argues that "the trial record is completely silent as to what, if any, actions defense counsel took in investigating Defendant's obvious psychotic actions." Defendant also complains that "trial counsel's apparent failure to investigate Defendant's medical, mental and neuropsychological background prejudiced him at sentencing." These suggestions are not well-taken and are directly contradicted by the record. The simple fact is that defendant's attorney presented the testimony of two board-certified psychiatrists who evaluated defendant's mental condition. That their findings might have been different from the psychiatrists who evaluated defendant several years later does not mean that defendant's attorney's performance fell below an objective standard of reasonableness. This is not a case in which defense counsel is alleged not to have even pursued a particular avenue of mitigation. Defense counsel's mitigation case was based on defendant's mental problems. Defendant has not made a sufficient showing that defense counsel's decision to rely on the evaluations conducted by these two psychiatrists fell below an objective standard of reasonableness.

Further, even if defendant could meet prong one of the Strickland test, he clearly could not succeed on the second prong. To do so, we would have to find that a reasonable probability exists that, had the jury considered the additional evidence that defendant has presented, the jury would have found that the balance of aggravating and mitigating factors did not warrant the death penalty. This we cannot do.

First, we must acknowledge the nearly impossible task facing defense counsel at the sentencing hearing. Defendant committed three horrific murders just months after being released from prison for two similarly horrific murders. The details of defendant's crimes were set forth in our opinion on direct appeal and need not be repeated here. See Miller, 173 Ill. 2d at 174-80. The sentencing jury heard an audiotape in which defendant discussed how he committed the two previous murders. Against this backdrop, defense counsel presented evidence of defendant's turbulent upbringing and his psychiatric problems.

Defense counsel marshaled this evidence into a lengthy, impassioned closing argument in which he asked the jurors to show mercy to the defendant and to respect the sanctity of life. Defense counsel argued that the only choice the jury was facing was death or life imprisonment. He explained to the jurors that they did not have to sentence defendant to death because defendant would never be set free, except in the unlikely event that he received a pardon from the governor. Additionally, defense counsel argued that defendant was not given psychiatric help, even though he had stated as early as 1977 or 1978 that he needed help and feared that he would commit similar crimes again. Defense counsel related the details of defendant's turbulent childhood, including the repeated physical, emotional, and sexual abuse that he suffered, and also explained that the evidence showed that defendant was suffering from severe psychiatric problems. Defense counsel finished with another call for mercy in which he invoked the Biblical Commandment "thou shall not kill," and argued that the decision of who should die should be left to God.

Defendant simply cannot show that, had the jury also been informed of the matters in Dr. Berlin's and Dr. Gelbort's reports, a reasonable probability exists that the jury would have found sufficient mitigating evidence to preclude the death penalty. Dr. Berlin's report paints a disturbing picture of defendant as a "sexual sadist" who could become sexually aroused only by inflicting great pain and suffering on his partners. Dr. Berlin concluded that this malady, which defendant did not have by choice, impaired defendant's volitional capabilities and that there was no reason to believe that defendant would have committed the crimes if he were not a sexual sadist. The jury, however, heard evidence that defendant had psychiatric problems that impaired his volitional capabilities and rejected this as a mitigating factor. Defendant's proffered new evidence is really just the same type of evidence with a different name. If the jury rejected as a sufficient mitigating factor that defendant's volitional capabilities were impaired by psychiatric problems, there is no reasonable probability that it would have reached the opposite conclusion if informed that the psychiatric problem "sexual sadism" impaired defendant's volitional capabilities. Also, it is quite possible that the jury would have viewed this evidence as aggravating because it indicated the probability that defendant would be dangerous in the future. See People v. Henderson, 142 Ill. 2d 258, 340 (1990). In this regard, a comment that this court made in Coleman, 168 Ill. 2d at 537, seems particularly applicable to sexual sadism: "not every mental or emotional condition that can be classified as a `disorder' will necessarily be mitigating, and in the case at bar it is not clear that expert testimony would have produced a profile that the jury would have viewed in an entirely sympathetic light."

There is likewise nothing in Dr. Gelbort's report to indicate that the jury would have reached a different result if it would have heard the evidence. In fact, Dr. Gelbort's report is mostly speculative. Dr. Gelbort asserted that there was strong support for doing additional testing to determine how defendant's brain does or does not function properly. Other than that, Dr. Gelbort concluded that defendant's neuropsychological dysfunction is best explained by frontal lobe impairment, which is consistent with the injuries defendant had sustained over time. As with Dr. Berlin's report, we simply cannot conclude that, had the jury considered this evidence, it would have determined that the balance of aggravating and mitigating factors did not favor death. Evidence was presented in mitigation that defendant had suffered an injury to his head, had psychiatric problems, and felt that he could not control himself. Dr. Gelbort's evidence put another name to these problems, but the jury rejected them as mitigating factors. The evidence in aggravation was very strong, and defendant has simply not met his burden of showing prejudice under Strickland. The trial court properly denied defendant an evidentiary hearing on this claim.

Ineffective Assistance of Counsel: Plea Negotiations

Defendant next argues that he received the ineffective assistance of counsel during plea negotiations. Prior to trial, the State offered a sentence of life imprisonment in exchange for defendant's guilty plea. Defendant rejected the offer. Defendant claimed in his post-conviction petition that he did not have time to make a rational decision whether to accept the offer and that his attorney failed to tell him that life imprisonment was the minimum sentence he could receive if convicted of the crimes. Defendant claimed in his petition that, had he known that life imprisonment was the most lenient sentence available, he would have pleaded guilty.

A criminal defendant has the constitutional right to be reasonably informed about the direct consequences of accepting or rejecting a plea offer. People v. Curry, 178 Ill. 2d 509, 528 (1997). Defendant's right to the effective assistance of counsel extends to the decision to reject a plea offer, even if the defendant subsequently receives a fair trial. Curry, 178 Ill. 2d at 518. To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) counsel's performance was so seriously deficient as to fall below an objective standard of reasonableness under prevailing professional norms, and (2) that the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064-65. When a defendant argues that his attorney's incompetent advice led him to reject the State's plea offer, the prejudice element is met if the defendant can show a reasonable probability that, absent the incompetent advice, he would have accepted the State's offer. Curry, 178 Ill. 2d at 531.

After carefully reviewing the post-conviction petition, defendant's supporting affidavit, and the record, we conclude that defendant cannot meet the first prong of the Strickland standard. As we noted, a defendant is entitled to an evidentiary hearing on a post-conviction claim only if he can make a substantial showing of a violation of a constitutional right. Hobley, 182 Ill. 2d at 427-28. Here, defendant has failed to make a substantial showing that his attorney's representation during plea negotiations was so seriously deficient that he was not functioning as the counsel guaranteed by the sixth amendment. See Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

Defendant's argument is based primarily on Curry, in which we held that the defendant received the ineffective assistance of counsel during plea negotiations. In Curry, the defendant was charged with one count of residential burglary and two counts of criminal sexual assault. The State offered to dismiss one count of criminal sexual assault and the residential burglary charge if defendant would plead guilty to the other count of criminal sexual assault and accept the State's recommendation of a sentence of 4½ years' imprisonment. Defendant rejected the plea offer, was convicted on all three counts, and received three consecutive four-year prison terms. Curry, 178 Ill. 2d at 512. Defendant argued that his attorney was ineffective because he failed to advise him that consecutive sentences were mandatory. Defendant contended that, if his attorney would have informed him that consecutive sentences were mandatory, he would have accepted the State's plea offer. Curry, 178 Ill. 2d at 516. This court agreed that defendant had received the ineffective assistance of counsel and thus remanded the cause for a new trial, which could "include the resumption of the plea bargaining process." Curry, 178 Ill. 2d at 536-37.

Curry is entirely distinguishable. First, the defense attorney's lack of knowledge that consecutive sentences were mandatory was established in the record. In that case, it was revealed during sentencing that the defense attorney had not realized that consecutive sentences were mandatory, and the attorney told the court that this lack of knowledge " `seriously impacted our plea discussions.' " Curry, 178 Ill. 2d at 522. The defendant filed a post-sentencing motion that was supported by his own stipulated testimony and an affidavit from his attorney. The attorney stated in his affidavit that, during plea negotiations, both he and the State's Attorney assumed that the defendant was not eligible for consecutive sentences. The attorney advised defendant that, if he were convicted, he would probably get close to the minimum sentence of four years because he did not have a criminal record. The attorney did not tell defendant that consecutive sentences were mandatory if he was convicted of more that one of the offenses, and the defendant relied on the attorney's advice in rejecting the plea offer. The defendant's stipulated testimony was that, if he would have known that consecutive sentences were mandatory, he would have accepted the State's offer. Curry, 178 Ill. 2d at 523.

In contrast, the record in this case does not show any confusion on the defense attorney's part as to the possible sentences. Defendant's attorney told the sentencing jury repeatedly that the only options facing defendant were death or life imprisonment.

Also, defendant's only support for his claim is his own self-serving affidavit, which is both internally contradictory and contradicted by the record. Defendant claims in his affidavit that he initially did not plead guilty because he was taken directly from the jail to the courtroom and that he did not have time to make a rational decision and accept the offer. He claimed both that his attorney did not tell him that there was an offer, and also that there was an offer that remained open as long as jury selection at his trial and that he did not accept the offer because his attorney did not explain to him that natural life imprisonment was the most lenient sentence available.

In addition to the internal contradictions in defendant's affidavit, it is expressly contradicted by the record. This is significant because the petition's factual allegations do not have to be taken as true when they are contradicted by the record from the original trial proceedings. Coleman, 183 Ill. 2d at 381-82. Prior to jury selection, defendant's attorney made sure that his advice to defendant regarding the plea offer was made part of the record:

"THE COURT: Let the record show we are in the presence of the defendant and the attorneys of record.

Mr. Penn wishes to bring a matter to the attention of the Court?

MR. PENN [Defense Attorney]: Your Honor, I want the record to reflect something, and I am doing this with my client's knowledge and permission. Several weeks ago in this matter, a negotiated disposition was arrived at, should Mr. Miller decide to avail himself of it, that encompassed his pleading to certain charges and receiving a natural life sentence.

I want the record to reflect that my son and I enthusiastically encouraged him to accept such, and he considered such, and at one point was desirous of doing so.

He literally, at the last minute, when we had the matter set for the plea, did elect to and, in fact, proceed with trial. Isn't that correct Mr. Miller?

THE DEFENDANT JOSEPH MILLER: Yeah."

Thus, defendant, on the record, agreed to a version of the plea negotiations that is different from the one set forth in his affidavit. In his affidavit he claimed that he did not plead guilty because he did not have time to make a rational decision. He conceded in his affidavit, however, that the offer remained open as long as jury selection, and he agreed in court at jury selection that a negotiated disposition had been arrived at weeks ago, that he had agreed to it, and then changed his mind at the last minute when it was time to plead. Contrary to the story told in his affidavit, defendant actually had several weeks in which to consider the offer.

What we know from this record, then, is that the defense attorney knew that the only choice defendant faced was death or life imprisonment, that the attorney "enthusiastically" encouraged defendant to take the plea agreement, that defendant agreed to do so and then changed his mind. Defendant decided not to plead guilty in exchange for a sentence of life imprisonment, knowing that (1) he was being tried for his third, fourth, and fifth murders; (2) DNA evidence and his own incriminating statements tied him to the crime; (3) that the murders were committed shortly after he was released from prison, where he was serving time for two similar murders; and (4) that the prosecution would seek the death penalty if it obtained convictions against him. Whatever defendant's reasons for rejecting his attorney's advice, it simply defies all credulity to believe that defendant's attorney could have in any way left defendant with the impression that if he were convicted for his third, fourth, and fifth murders that he might again be sentenced to a term of years and released from prison.

Further, in Curry, the defendant followed his attorney's advice in rejecting the plea agreement. Here, defense counsel enthusiastically encouraged defendant to accept the State's plea offer, and defendant ignored his attorney's advice and went to trial. The defense attorney then took steps to ensure that his advice to defendant was made part of the record. Having been convicted and sentenced to death, defendant now wants his conviction vacated so that he can follow his attorney's allegedly incompetent advice and plead guilty in exchange for life imprisonment.

Finally, even assuming that defendant could satisfy prong one of Strickland, he could not satisfy prong two. We specifically held in Curry that defendant's own statement that he would have pleaded guilty except for the incompetent advice was insufficient to satisfy Strickland's prejudice requirement because the statement was subjective and self-serving. Curry, 178 Ill. 2d at 531, quoting Turner v. Tennessee, 858 F.2d 1201, 1206 (6th Cir. 1988). In that case, however, the defendant provided additional evidence of record that corroborated his self-serving allegation. Curry, 178 Ill. 2d at 531. Here, there is no evidence of record to corroborate defendant's self-serving statement. If anything, the record shows that defendant was simply determined to go to trial, no matter what the odds were of an acquittal or a sentence other than death. Defendant has not made a substantial showing that he received the ineffective assistance of counsel during plea negotiations.

Decher-Mayes Testimony

Finally, defendant raises two issues concerning prosecution witnesses Mary Decher and Daniel Mayes. These two witnesses gave testimony that placed defendant in the car believed to have been used by the murderer. Defendant gave them conflicting statements about how he came into possession of the vehicle. Defendant claimed in his petition that Decher and Mayes must have been offered leniency by the State in exchange for their testimony and that the evidence of a deal with the State was never disclosed to him. Defendant argues both that the State violated its obligation under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), to disclose the promise of leniency and also that his attorney was ineffective for failing to cross-examine Decher and Mayes about whether they were offered anything in exchange for their testimony.

We note initially that defendant's claim of a promise of leniency is entirely speculative. The evidence that defendant attached to his post-conviction petition in support of this claim is a series of police reports showing that when the police questioned Decher and Mayes, they admitted that they were involved in the sale of stolen property with defendant. Defendant infers from this that they must have been offered leniency in exchange for their testimony. Because defendant has failed to provide any evidence that there was in fact a promise of leniency, his petition was subject to dismissal on that basis alone. However, we will briefly address his claims on the merits.

Under Brady, the State has an obligation to disclose evidence that is both favorable to the accused and material to guilt or to punishment. Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196-97. Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494, 105 S. Ct. 3375, 3383 (1985); People v. Sanchez, 169 Ill. 2d 472, 486 (1996). Assuming arguendo that Decher and Mayes were promised leniency in exchange for their testimony and that this agreement was not disclosed to the defense, defendant simply cannot show a reasonable probability that the result would have been different if his attorney would have been able to introduce evidence of the deal. As we noted in our opinion on direct appeal, the evidence in the case was not closely balanced, and the evidence of defendant's guilt was overwhelming. Miller, 173 Ill. 2d at 194-95. The testimony of Decher and Mayes was helpful in that it tied defendant to the vehicle likely used by the murderer. However, there was other evidence connecting defendant to the vehicle. See Miller, 173 Ill. 2d at 177-78. And, more importantly, there was plenty of evidence to convict defendant even without their testimony, including defendant's own incriminating statements and the DNA evidence that conclusively linked him to the crime. See Miller, 173 Ill. 2d at 174-78. Thus, assuming there was an undisclosed promise of leniency, defendant cannot show that he was prejudiced by not having this information. For the same reason, defendant cannot meet the second prong of the Strickland test on his ineffective assistance of counsel claim. Defendant simply cannot show a reasonable probability that, had his attorney cross-examined Decher and Mayes about promises of leniency in exchange for their testimony, that the jury would not have convicted him. Accordingly, the trial court properly denied defendant an evidentiary hearing on this claim.

CONCLUSION

Defendant's post-conviction petition, supported by the accompanying evidence and the trial record, does not make a substantial showing that defendant's constitutional rights were violated. Accordingly, the court did not err in dismissing the petition without an evidentiary hearing. The judgment of the circuit court of Peoria County is affirmed. The clerk of this court is directed to enter an order setting Tuesday, March 11, 2003, as the date on which the sentence of death entered in the circuit court is to be carried out. Defendant shall be executed in the manner provided by law. 725 ILCS 5/119-5 (West 2000). The clerk of this court shall send a certified copy of the mandate in this case to the Director of Corrections, to the warden of Tamms Correctional Center, and to the warden of the institution where defendant is now confined.

Judgment affirmed.

JUSTICE KILBRIDE, dissenting:

For the reasons set forth in my dissents in People v. Hickey, No. 87286, slip op. at 39-43 (September 27, 2001) (Kilbride, J., dissenting), and People v. Simpson, Nos. 85084, 86926, slip op. at 35-38 (September 27, 2001) (Kilbride, J., dissenting), I believe that defendant's convictions and sentence should be set aside because the trial proceedings were not conducted in accordance with the new supreme court rules governing capital cases. As I stated in my dissents, the procedures in capital cases prior to this court's adoption of the new rules were inherently unreliable and did not sufficiently protect a defendant's constitutional rights. For this reason, the new rules should be applied retroactively. See People v. Caballero, 179 Ill. 2d 205, 220-21 (1997). Therefore, I respectfully dissent.

JUSTICE RARICK joins in this dissent.


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