Appeal from Circuit Court of McLean County. No. 08CF181. Honorable Robert L. Freitag, Judge Presiding.
The appellate court reversed the first-stage dismissal of defendant's pro se postconviction petition alleging that his trial counsel was ineffective in failing to advise him that he would be subject to a life sentence if he was found guilty of the two first degree murder charges filed against him, especially when it was likely he would have rejected his counsel's advice not to ask for an instruction on second degree murder if he had known a life sentence was possible, since defendant presented the gist of a constitutional claim in view of the reasonable probability that defendant could have been convicted of second degree murder if such an instruction had been given; therefore, the cause was remanded for second-stage proceedings, including the appointment of counsel, if requested.
Michael J. Pelletier, Jacqueline L. Bullard, and Ryan R. Wilson, all of State Appellate Defender's Office, of Springfield, for appellant.
Jason Chambers, State's Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Aimee Sipes Johnson, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE POPE delivered the judgment of the court, with opinion. Justices Knecht and Turner concurred in the judgment and opinion.
[¶1] Defendant, Michael B. Brown, appeals the trial court's first-stage dismissal of his postconviction petition, arguing the court erred in finding the petition frivolous and patently without merit where he raised the gist of a meritorious claim of ineffective assistance of trial counsel. We reverse and remand for second-stage proceedings.
[¶2] I. BACKGROUND
[¶3] Because the facts are well known by the parties and have been extensively recounted by this court in its prior opinion in this case ( People v. Brown, 406 Ill.App.3d 1068, 952 N.E.2d 32, 351 Ill.Dec. 659 (2011)), we reiterate only those facts necessary to resolve the issues raised on appeal.
[¶4] This case arises from a February 12, 2008, incident where Calvin and David Walls were shot and killed by defendant
following an altercation at defendant's apartment. During the altercation, defendant fired at least 14 shots, which resulted in at least 11 gunshot wounds. Thereafter, the State charged defendant with, inter alia, six counts of first degree murder in the deaths of Calvin and David Walls (720 ILCS 5/9-1(a)(1), (a)(2) (West 2008)), and two counts of aggravated battery with a firearm for gunshot wounds to David and Calvin's brother, Levar Walls, and defendant's cousin, Montell Jones (720 ILCS 5/12-4.2(a)(1) (West 2008)). Defendant maintained he shot the Walls brothers in self-defense.
[¶5] Following defendant's April 2009 jury trial, the following colloquy took place during the jury instruction conference regarding whether the jury would be instructed on second degree murder:
" THE COURT: Before we conclude then, let me bring up the subject, because I want again the record to be clear, the defense has requested in this case, and the court has ruled it will give instructions regarding self-defense and defense of a dwelling. Defense has not requested any instructions on second degree murder, and I just want to, for the record, I want to clarify, [defense counsel], that you have considered and consulted with your client on the issue of the tendering of second degree instructions and that you have decided, and the defendant has decided, that you do not wish to tender those instructions.
[DEFENSE COUNSEL]: Judge, we have had a full conversation and discussion about the legal ramifications of the decision. I have told [defendant] it is one of the four decisions he has to make as a defendant. He has expressed to me today and on a prior occasion he does not wish the jury to be instructed on second degree.
THE COURT: [Defendant], as your attorney just indicated, sir, you have been charged in the indictment with the offense of first degree murder. There is what is often referred to as a lesser included offense of second degree murder. And at your request based upon the evidence that's been presented in this case, the court would instruct the jury on the offense of second degree murder, that is, that they would have the option of determining whether or not you're guilty of first degree murder and if so then determining whether there was a mitigating factor to ...