Appeal from the Circuit Court of Lake County. No. 00-CF-1400 Honorable Victoria A. Rossetti, Judge, Presiding. Appeal from the Circuit Court of Lake County. No. 00-CF-1401
The opinion of the court was delivered by: Justice Birkett
Honorable Victoria A. Rossetti,
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices McLaren and Zenoff concurred in the judgment and opinion.
¶ 1 Defendants, Sandra Haissig and Edward Golden, were convicted of two counts of theft of over $100,000 from their employer, Abbott Laboratories (Abbott) (720 ILCS 5/16-1(a)(1)(A), (a)(2)(A) (West 2000)). The circuitous history of this case has generated two prior dispositions from this court (in 2003 and 2007), and one disposition (2008) and one supervisory order (2011) from the supreme court. Most of those proceedings are recounted in People v. Golden, 229 Ill. 2d 277 (2008), yet there have been years of proceedings since that decision. In its present form, the case comes before us on the denial of defendants' petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)).*fn1 In their petition, defendants alleged that defense counsel in their direct appeal were ineffective for failing to include critical transcripts in the appellate record, which failure caused the appellate court to reject as forfeited their argument that the State failed to prove their guilt beyond a reasonable doubt. Golden, 229 Ill. 2d at 279. We hold that the petition was properly denied because defendants failed to establish that appellate counsel's omission prejudiced them.
¶ 3 Defendants were charged with five counts of theft involving Abbott. Counts II and V charged defendants with stealing electronics from Abbott. The remaining counts dealt with a different set of circumstances. The parties agree on the essential facts. During defendants' employment with Abbott, the company had a policy requiring employees to disclose any personal financial interests they had in firms doing business with Abbott. Defendants formed a company named Elevator Components, Inc. Over a period of several months, Elevator Components received approximately $300,000 from Abbott in exchange for elevator services. Defendants did not disclose to Abbott their interest in Elevator Components but in fact fabricated a contact name for the company. Count I charged defendants with obtaining unauthorized control of Abbott's funds. See 720 ILCS 5/16-1(a)(1)(A) (West 2000). Count III charged defendants with obtaining Abbott's funds by deception, namely, using Elevator Components to shield their identities from Abbott. See 720 ILCS 5/16-1(a)(2)(A) (West 2000). Count IV also charged theft by deception and alleged that defendants submitted to Abbott invoices falsely claiming that elevator work had been done. The common allegation in all three counts, and the focus of this appeal, is that defendants intended to permanently deprive Abbott of the use or benefit of the funds it paid for the elevator work. See 720 ILCS 5/16-1(a)(1)(A), (a)(2)(A) (West 2000).
¶ 4 Defendants were tried to the bench. The State relied on alternative theories. The State's lead argument was that defendants were guilty under counts I and III because they received funds from Abbott under false pretenses, regardless of whether Abbott received fair value for the funds. The State then argued that, even if what Abbott received was relevant to whether a theft occurred, defendants were still guilty under count IV because defendants did not perform all of the work for which Abbott contracted. Defendants contested both points.
¶ 5 The court acquitted defendants on counts II and V.*fn2
The court also acquitted defendants on count IV because the
State failed to prove beyond a reasonable doubt that "any particular
repair was not completed by the defendants." The court then turned to
counts I and III, both of which it construed as alleging theft by
deception. That Abbott received the services for which it contracted,
albeit under a false impression as to the provider, prompted the court
to ask, with respect to counts I and III, "[C]an the crime of theft by
deception be committed when the victim sustains no monetary
loss?" The court answered yes. The court cited the Illinois decisions
of People v. Kotlarz, 193 Ill. 2d 272 (2000), and People v. Gayton,
293 Ill. App. 3d 442 (1997), but found neither case directly on point.
After reviewing foreign authorities and a treatise on criminal law,
the court convicted defendants on counts I and III despite Abbott's
having "received the benefit of all of the work being performed that
it paid for." The court imposed sentence on count III alone.
Defendants were each sentenced to probation and periodic imprisonment.
No restitution was ordered. The court's rationale for the sentence,
including its decision not to order restitution, is unknown because
the transcript of the sentencing hearing is not in the
¶ 6 Defendants appealed to this court. On April 8, 2002, this court granted defendant Haissig's motion to stay her term of periodic imprisonment pending appeal. In their briefs to this court, defendants argued that, because (as the trial court determined) Abbott received from defendants all services for which it contracted, they could not, as a matter of law, be guilty of theft. This court rejected that argument as forfeited because defendants failed to include in the appellate record a transcript of the hearing at which the trial court made its findings of fact and entered the convictions and acquittals. See People v. Haissig, Nos. 2-01-1410 & 2-01-1411 cons. (2003) (unpublished order under Supreme Court Rule 23).
¶ 7 The ensuing years saw further proceedings in the trial and reviewing courts, but the phase of the case that is our direct concern here began on June 3, 2009, when defendants filed their "Amended Second Supplemental Post Conviction Petition" (post-conviction petition). Defendants alleged that appellate counsel was ineffective because, but for counsel's incompetence in failing to include the transcript of the court's factual findings and rationales, the appellate court would have reached, and accepted, defendants' argument that, as a matter of law, they were not guilty of theft.
¶ 8 On June 29, 2009, the State filed a motion to dismiss the petition for failing to develop the claim of ineffectiveness. On December 7, 2010,*fn3 after hearing argument, the court denied the motion. The court determined that there were "sufficient issues [raised in the petition] with regard to an appeal." The court set December 15 for hearing on "the petition itself." On December 15, after hearing argument, the court granted defendants' petition. As relief, the court allowed defendants to file their appeal "with proper documentation." On March 16, 2011, the supreme court entered a supervisory order directing the trial court to vacate that part of its December 15 order "allowing defendants to file a new appeal as a remedy for the finding of ineffective assistance of counsel." People v. Rossetti, No. 111883 (Ill. Mar. 16, 2011). The supreme court directed the trial court to enter an order consistent with section 122-6 of the Act (725 ILCS 5/122-6 (West 2008)), which states:
"Disposition in Trial Court. The court may receive proof by affidavits, depositions, oral testimony, or other evidence. In its discretion the court may order the petitioner brought before the court for the hearing. If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or sentence in the former proceedings and such supplementary orders as to rearraignment, retrial, custody, bail or discharge as may be necessary and proper."
¶ 9 The case was remanded, and, on June 28, 2011, the trial court held another hearing on the petition. That same day, the court denied the petition. The court reasoned that, though appellate counsel fell below reasonable professional norms in failing to include a transcript of the trial court's ruling, defendants failed to establish a reasonable probability that, but for counsel's error, they would have prevailed on appeal. In this regard, the court held that "theft by deception may be committed regardless of direct proof of an actual monetary loss by the victim."
¶ 10 Defendants filed timely appeals, which we consolidated.
¶ 12 Defendants challenge the denial of their petition, specifically the trial court's holding that sections 16-1(a)(1)(A) and (a)(2)(A) of the Code of Criminal Procedure of 1961 (Criminal Code) (720 ILCS 5/16-1(a)(1)(A), (a)(2)(A) (West 2000)) do not require proof that the victim suffered pecuniary loss.
¶ 13 The Act provides a remedy for criminal defendants who have suffered substantial violations of their constitutional rights. People v. Mauro, 362 Ill. App. 3d 440, 441 (2005). Defendants alleged in their petition that appellate counsel's failure to file the transcript of the court's guilty finding denied them their right to effective assistance of counsel, guaranteed by both the Illinois and the United States Constitutions. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Ineffective-assistance-of-counsel claims are governed by the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our supreme court in People v. Albanese, 104 Ill. 2d 504 (1984). To prevail on a claim of ineffective assistance, the defendant must show both that counsel's performance was deficient and that the deficiency prejudiced the defendant. Strickland, 466 U.S. at 687. More specifically, the defendant must demonstrate that counsel's performance 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." Id. at 694. A defendant alleging ineffectiveness of appellate counsel must establish both that appellate counsel's performance was deficient and that a reasonable probability exists that, but for counsel's errors, the appeal would have been successful. Golden, 229 Ill. 2d at 283.
¶ 14 In non-capital cases, the Act prescribes a three-stage process for adjudicating a post-conviction petition. Id. The parties disagree as to which stage the petition had reached before defendants took this appeal. Defendants claim that the petition had reached the third stage, while the State claims that it reached only the second stage. All indications are that the petition reached the third stage. The State's motion to dismiss was denied, the trial court set the case for hearing on the "petition itself," and the State filed its answer. See People v. Pendleton, 223 Ill. 2d 458, 472-73 (2006) ("If [the State's motion to dismiss] is denied, or if no motion to dismiss is filed, the State must answer the petition, and, barring the allowance of further pleadings by the court, the proceeding then advances to the third stage, a hearing wherein the defendant may present evidence in support of the petition." (citing 725 ILCS 5/122-6 (West 2008)). Ultimately, however, the disagreement does not impact our standard of review. The de novo standard of review applies equally to a second-stage dismissal based on the pleadings and to a third-stage denial where there were no contested issues of fact. See id. at 473. Here, no evidence was presented at any of the hearings on the petition; the issue of defendants' guilt was presented as a pure question of law. Our review is de novo.
¶ 15 The issue on appeal is narrow. There is no dispute that appellate counsel's performance was objectively unreasonable for counsel's failure to file the transcript. The contested issue is whether this court, if provided that transcript, would have determined as a matter of law that defendants were not guilty of theft. The elements of theft are set forth in section 16-1 of the Criminal Code, which provides:
"(a) A person commits theft when he [or she] knowingly:
(1) Obtains or exerts unauthorized control over property of the owner; or
(2) Obtains by deception control over property of the owner; or
(3) Obtains by threat control over property of the owner; or
(4) Obtains control over stolen property knowing the property to have been stolen or under such circumstances as would reasonably induce him or her to believe that the property was stolen; or
(5) Obtains or exerts control over property in the custody of any law enforcement agency which is explicitly represented to him by any law enforcement officer or any individual acting in behalf of a law enforcement agency as being stolen, and
(A) Intends to deprive the owner permanently of the use or benefit of the property; or
(B) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit; or
(C) Uses, conceals, or abandons the property knowing such use, concealment or abandonment probably will deprive the owner permanently of such use or benefit." 720 ILCS 5/16-1 (West 2000).
Defendants were convicted under both subsections (a)(1)(A) and (a)(2)(A).
¶ 16 We initially note that defendants make a brief allusion to subsection (1), stating:
"[T]he phrase 'unauthorized control' within the statute providing that a person commits theft when he knowingly obtains or exerts unauthorized control over [the] property of [the] owner and intends to deprive [the] owner permanently of [the] use or benefit of [the] property, means ...