Appeal from the Circuit Court of Du Page County. No. 78-CF-317. Honorable Robert G. Kleeman, Judge, Presiding.
Thomas A. Lilien and Paul J. Glaser, both of State Appellate Defender's Office, of Elgin, for appellant.
Robert B. Berlin, State's Attorney, of Wheaton (Lisa A. Hoffman, Assistant State's Attorney, of counsel), for the People.
PRESIDING JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Zenoff and Burke concurred in the judgment and opinion.
SCHOSTOK, PRESIDING JUSTICE
[¶1] Defendant, Phillip E. La Pointe, appeals a judgment that denied his successive petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)) against his life sentence for first-degree murder (Ill. Rev. Stat. 1977, ch. 38, ¶ 9-1(a)(1)). On appeal, defendant contends that he proved that Edwin Simpson, the assistant public defender who represented him when he pleaded guilty and was sentenced, was ineffective. We affirm.
[¶2] On March 7, 1978, defendant, who was 18 years old, shot and killed Peter Moreno, Jr., a taxicab driver. The State charged defendant with (1) first-degree murder based on the intent to kill (first-degree
murder) (Ill. Rev. Stat. 1977, ch. 38, ¶ 9-1(a)(1)); (2) felony murder (Ill. Rev. Stat. 1977, ch. 38, ¶ 9-1(a)(3)); and armed robbery (Ill. Rev. Stat. 1977, ch. 38, ¶ 18-2(a)). Defendant initially pleaded not guilty.
[¶3] On June 16, 1978, the trial court, Judge Edwin L. Douglas presiding, held a hearing. Simpson stated that, by agreement, defendant wished to withdraw his plea and plead guilty to first-degree murder only, with no agreement on sentencing. In response to Judge Douglas's questions, defendant stated that he understood the charge and wished to plead guilty to it.
[¶4] Assistant State's Attorney Thomas Knight then provided the following factual basis. On the morning of March 7, 1978, defendant visited David Cichelli at the gas station where Cichelli worked and told him that he was going to rob and kill a cab driver. Defendant showed Cichelli a loaded .22-caliber revolver. Shortly afterward, defendant left, walked two blocks, and called for a cab. Moreno arrived, picked up defendant, and drove to the area of York Commons. Defendant shot Moreno twice in the head with the revolver. He then drove the cab, with Moreno's body inside, a short distance and left it there. Defendant took some money from Moreno, returned to the gas station, and told Cichelli, " 'Well. I did it. I killed him.'" He added that he had killed Moreno because Moreno could identify him.
[¶5] The factual basis continued as follows. Later that day, the police found the cab with Moreno lying dead inside. On March 8, 1978, defendant was arrested and taken to the police station. He admitted that he had called the cab; that he was in the cab when he heard two shots fired; and that only he and Moreno had been in the cab then. Defendant said that the gun was now in his home. The police obtained and executed a search warrant and found the gun. When defendant shot Moreno, he was not under the influence of drugs or any mental incapacity that negated the intent required for first-degree murder.
[¶6] The following colloquy then ensued:
" THE COURT: ***
Mr. Lapointe [ sic ], what you have heard the State's Attorney indicate just now, is that substantially the--is that basically correct?
DEFENDANT LAPOINTE: Most of it, yes, sir.
THE COURT: Most of it?
DEFENDANT LAPOINTE: Yeah.
THE COURT: What do you mean by 'most of it'?
MR. SIMPSON: Your Honor, for the purpose of this record, Mr. Lapointe [ sic ], and I as his attorney, will stipulate that were the matter to go to trial, that is the evidence that the State would prove or show if the case were to go to trial."
[¶7] Judge Douglas further admonished defendant. After defendant reiterated that his plea was voluntary, the following colloquy occurred:
" THE COURT: Let the record show that the Court further advises you that upon your plea of guilty to the crime of murder, the Court must impose a sentence within the possibilities as follow[s]: At the very least the Court must impose a sentence of a specific number of years of imprisonment, and that number cannot be less than 20. That specific number of years can be as high as 40 years.
Some examples would be 25 years, 28 years, 37 years or 40 years. Do you understand this possible sentence?
DEFENDANT LAPOINTE: Yes, I do.
THE COURT: Or. the Court may impose a sentence of a specific number of
years of imprisonment of not less than 40 nor more than 80 years if you were 17 years or older on the date the crime was committed and either you have previously been convicted within the last ten years of a felony of an equal or greater class than that to which you are tendering your plea of guilty.
In your case, that could only be a previous murder conviction or if the Court finds that the crime you committed was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.
Do you understand this possibility?
DEFENDANT LAPOINTE: Yes, I do.
THE COURT: It is also possible for the Court to impose a sentence of imprisonment for the rest of your natural life without parole if the Court finds either that the murder you committed was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or you were 18 years or older at the time of the crime and the person you murdered was killed during the course of an armed robbery and was actually killed by you and not some other party to the crime or simply as a consequence of that crime, and you killed that person intentionally or with the knowledge that the acts which caused the death, created a strong probability of death or great bodily harm.
Do you understand this possible sentence?
DEFENDANT LAPOINTE: Yes, I do."
[¶8] Judge Douglas further admonished defendant that he could be sentenced to death if, at the State's request, the court held a hearing in aggravation and mitigation and a jury unanimously found (or, if defendant waived a jury, the judge found) beyond a reasonable doubt that (1) defendant committed the murder during an armed robbery; and (2) no mitigating factors existed that were sufficient to preclude the death penalty. If the jury (or judge) so found, the court would be required to sentence defendant to death. Defendant said that he understood.
[¶9] Next, the judge admonished defendant that, if he were sentenced to prison for less than life, he would, upon his release, have to serve three years of mandatory supervised relief (MSR); if he violated any conditions of his MSR, he could be reincarcerated. Defendant said that he understood. He also stated that he had no questions concerning the possible sentences and that he still wished to plead guilty to first-degree murder. The judge then found that defendant had voluntarily pleaded guilty and that there was a factual basis for the plea.
[¶10] Simpson briefly questioned defendant. In response, defendant stated that the State had given Simpson information that Simpson had then discussed with defendant; that Simpson's investigator had obtained other information, which Simpson had also shared with defendant; and that Simpson had not threatened or coerced him into pleading guilty.
[¶11] We must now note that, effective February 1, 1978, Public Act 80-1099, § 3, amended section 3-6-3 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1977, ch. 38, ¶ 1003-6-3) to provide as follows (additions are italicized, and deletions are noted by strikeouts, as in the original act):
" § 3-6-3. Rules and Regulations for Early Release Diminution of Sentence.) [ sic ] (a) (1) The Department of Corrections shall prescribe rules and regulations for the early release diminution of sentences on account of good conduct or meritorious service of persons committed to the Department which shall be
subject to review by the Prisoner Review Board.
(2) Such rules and regulations shall provide that the prisoner shall receive one day of good conduct credit for each day of service in prison for all classes of felonies other than where a sentence of 'natural life' has been imposed. Each day of good conduct credit shall reduce by one day the inmate's period of incarceration set by the court. The maximum sentence shall not be diminished, except with the approval of the Director of the Department of Corrections.
(3) Such rules and regulations shall also provide that the Director may award up to 90 days additional good conduct credit for meritorious service in specific instances as the Director deems proper.
(b) Whenever a person is or has been committed under separate convictions, with separate sentences, such sentences shall be construed under Section 5-8-4 [of the Code (Ill. Rev. Stat. 1977, ch. 38, ¶ 1005-8-4)] in granting and forfeiting of good time.
(c) The Department shall prescribe rules and regulations for revoking good conduct credit time, or suspending or reducing the rate of accumulation thereof for specific rule violations, during imprisonment or release on parole or mandatory release under supervision. Such rules and regulations shall provide that :
(1) good conduct credits previously earned shall accumulate on a monthly basis.
(2) no inmate may be penalized more than one year of good conduct credit for any one infraction.
When the Department seeks to revoke, suspend or reduce the rate of accumulation of any good conduct credits for an alleged infraction of its rules, it shall bring charges therefor against the prisoner sought to be so deprived of good conduct credits before the Prisoner Review Board *** if the amount of credit at issue exceeds 30 days or when during any 12[-]month period, the cumulative amount of credit revoked exceeds 30 days. However, the Board shall not be empowered to review the Department's decision with respect to the loss of 30 days of good conduct credit within any calendar year for any prisoner or to increase any penalty beyond the length requested by the Department.
(3) The Director of the Department of Corrections, in appropriate cases, may restore up to 30 days good conduct credits which have been revoked, suspended or reduced. Any restoration of good conduct credits in excess of 30 days shall be subject to review by the Prisoner Review Board. However, the Board may not restore good conduct credit in excess of the amount requested by the Director.
(4) Nothing contained in this Section shall prohibit the Prisoner Review Board from ordering *** that a prisoner serve up to one year of the sentence imposed by the court which was not served due to the accumulation of good conduct credit." Pub. Act 80-1099, § 3 (eff. Feb. 1, 1978).
[¶12] The judge did not admonish defendant that he would be eligible for good-conduct credit against a sentence of less than natural life. At the guilty-plea hearing, the subject of good-conduct credit was never raised on the record.
[¶13] The court ordered a presentence investigation report (PSIR). On August 31, 1978, the court held a sentencing hearing. We note the following.
[¶14] Cichelli testified consistently with the factual basis about his encounters with defendant; he added that defendant said that he had shot Moreno for the money but that it was not worth it. Elmhurst police sergeant James Altman testified that, when he examined the abandoned taxicab, he saw that Moreno's pockets had been turned inside-out and there was no money or identification on him. Sergeant Ralph O'Connell, who had supervised the evidence work in the investigation, testified that Moreno had been shot twice, in the head and the neck, from behind at close range. Deputy sheriff David Leeberg testified that he had been assigned to the Du Page County jail as a supervisor. Late in March and early in April 1978, he saw defendant roughly 10 times ...