A record which showed that a defendant’s rejection of a plea offer was not based on his allegations of counsel’s erroneous advice as to consecutive sentencing, but on other considerations, did not establish the prejudice which had to be shown to establish a constitutional claim of ineffective assistance of counsel.
Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Sharon M. Sullivan, Judge, presiding.
Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and Annette Collins, Assistant State's Attorneys, of counsel), for the People.
Robert M. Stephenson, of Becker Stephenson LLC, of Chicago, for appellee.
Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Burke, and Theis concurred in the judgment and opinion.
¶ 1 The issue presented for our review is whether defendant, Clearthur (also known as James) Hale, was denied his constitutional right to the effective assistance of counsel during plea negotiations with the State when his trial counsel failed to inform him that he would receive mandatory consecutive sentences under section 5-8-4(a) of the Unified Code of Corrections (Code) (730 ILCS 5/5-8-4(a) (West 2008)), if convicted of both counts of attempt (first degree murder) with which he was charged. The circuit court of Cook County rejected defendant's ineffective assistance of counsel claim. The appellate court, however, relying on the two-prong standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 688 (1984), concluded that trial counsel, Tod Urban,  was constitutionally ineffective because defendant had shown both that counsel's performance " 'fell below an objective standard of reasonableness' and that the deficient performance prejudiced the defense. People v. Hodges, 234 Ill.2d 1, 17 (2009), quoting Strickland, 466 U.S. at 687-88." 2011 IL App (1st) 090110-U, ¶¶ 16, 27. The appellate court therefore reversed defendant's convictions and remanded the cause for the resumption of plea negotiations and a new trial if necessary. Id. ¶ 27. We granted the State's petition for leave to appeal (Ill. S.Ct. R. 315 (eff. Feb. 26, 2010)), and now conclude that defendant did not establish the prejudice prong of Strickland. Thus, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.
¶ 2 BACKGROUND
¶ 3 Following a jury trial, defendant was found guilty of two counts of attempt (first degree murder), one count of aggravated battery with a firearm, and one count of aggravated discharge of a firearm toward an occupied vehicle. At trial, the State's evidence showed, inter alia, that around 4 a.m. on February 25, 2001, defendant fired approximately eight shots at a vehicle containing Marvin Tankson, the driver, and Jassandra Booker, the passenger, because that vehicle had significantly decreased its speed on the expressway. Tankson testified that defendant, in a Nissan Pathfinder, pulled up near Tankson's vehicle and asked why he was slowing down traffic. When Tankson responded that he was warning another driver about a loose bumper, defendant replied that he did not care, stated "[d]o you know who the fk I am, " then brandished a gun. Booker was shot as Tankson attempted to speed away.
¶ 4 As a result of her injury, Booker underwent multiple surgeries and was kept in a coma for several weeks. Tankson viewed a security tape from a nightclub where he told police he had seen defendant earlier on the night in question, and positively identified defendant as the shooter. Tankson also identified defendant in both a photographic array and a physical lineup. Booker identified defendant as the shooter from a photographic array.
¶ 5 Latasha Wheeler testified for the defense that on the night of the offense she was riding in the Pathfinder along with her now-deceased boyfriend, Jeffrey Smith, when Smith started shooting at Booker and Tankson. At trial, Wheeler recanted her statement made to an assistant State's Attorney approximately five weeks after the crime, wherein she identified defendant as the shooter. She claimed that she lied in her statement so that Smith would not go to jail and because he had threatened her. However, she admitted that Smith had been killed long before defendant's trial, and despite the fact that she was no longer afraid of Smith, she did not go to police to say she had accused the wrong man. In rebuttal, the assistant State's Attorney who had handwritten Wheeler's signed statement read it into evidence. The jury found defendant guilty on all four counts.
¶ 6 Prior to sentencing, but following the denial of defense counsel Urban's motion for a new trial, counsel told the court that defendant had a pro se motion alleging counsel's ineffectiveness which he wanted to file. The trial court refused to hear defendant's motion and proceeded to sentencing. In aggravation, inter alia, the State emphasized Booker's serious injuries, noted that defendant's extensive criminal background made him eligible for an extended term, and asked for consecutive sentencing on his convictions. The State also called Tankson, who testified that, in May 2001, three months after the shooting, he was approached by two men, Marshall Miller and Roosevelt Gaters. Gaters identified himself as defendant's friend and offered Tankson $10, 000 in exchange for his recantation and offered to take Tankson to talk to defendant. When the men left, Tankson immediately called Illinois State Police Special Agent Robert Hunt, who was investigating the case, and told him what had happened. Although Hunt showed Tankson a photograph of Roosevelt Gaters, Tankson did not identify or name him at the time because he was "scared."
¶ 7 In mitigation, inter alia, defense counsel Urban challenged the State's request for consecutive terms, arguing that the shooting "all happen[ed] in the same course of conduct." Counsel asserted that consecutive sentencing was not warranted where the charges stemmed from "shots being randomly fired at the car" and thus there was only one offense, stating: "The aggravated battery with a firearm is the same as the attempt murder is the same as the aggravated discharge." Counsel argued that the sentencing range should be 6 to 30 years, extendable to 60 years by background, and concurrent. Defendant's statement in allocution maintained that he "never did nothing to [Booker], " and repeatedly asked to present his pro se motion, alleging ineffective assistance of trial counsel, to the court.
¶ 8 At the hearing's conclusion, the court reviewed the charges, two Class X felony attempt (first degree murder) counts punishable by terms of 6 to 30 years with an extended range of 30 to 60 years, a Class X felony aggravated battery with a firearm count, and a Class 1 felony aggravated discharge of a firearm count. The court found that Booker suffered severe bodily injury and, thus, consecutive sentencing under section 5-8-4 of the Code was mandatory. The court also noted that because seven or eight shots were fired, there were sufficient acts for both attempt (first degree murder) counts to stand, but merged the counts of aggravated battery with a firearm and aggravated discharge of a firearm toward an occupied vehicle into the attempt counts. The court then sentenced defendant to a 30-year term for the attempt (first degree murder) count involving Booker, and a consecutive 10-year term for the attempt count involving Tankson. Thereafter, defendant again notified the court that he wanted to file his pro se motion, but while the court stated that defendant could "file your piece of paper, " the court declined to address it.
¶ 9 On direct appeal, defendant argued, as pertinent here, that the trial court should have inquired into the basis of his pro se motion alleging ineffective assistance of counsel pursuant to this court's holding in People v. Krankel, 102 Ill.2d 181 (1984). The appellate court accepted the State's concession that the trial court erred and remanded for the limited purpose of allowing the trial court to conduct the necessary Krankel preliminary investigation in accordance with People v. Moore, 207 Ill.2d 68 (2003). People v. Hale, No. 1-04-0070, slip op. at 9 (2006) (unpublished order under Supreme Court Rule 23). Moore, 207 Ill.2d at 81, explained that in such a limited remand, if the court determines that the defendant's claims of ineffectiveness are spurious or pertain only to trial strategy, the court may then deny the motion and leave standing defendant's convictions and sentences. "However, if the allegations show possible neglect of the case, new counsel should be appointed." Id. at 78.
¶ 10 In August 2006, following resolution of defendant's direct appeal, he filed another prose motion, entitled "Motion for New Trial on the Grounds of Ineffective Assistance of Counsel." This motion was different from the original motion the trial court had eventually allowed defendant to file at sentencing. In this new motion, defendant reiterated many of his earlier claims and, for the first time, he alleged ineffective assistance of counsel during plea negotiations. Next, in June 2007, following review of defendant's original pro se motion, the trial court appointed counsel to represent defendant on the six of his eight pro se claims of ineffective counsel alleged therein, which the court could not say were "completely without merit." Appointed counsel later filed a "Supplemental Motion for a New Trial, " which included, inter alia, defendant's new claim that: "[Defense counsel] Todd Urban improperly advised the defendant that the ...