People v. Rissley

however, does constitute new evidence —it is not based on recent any evaluations of defendant nor does it present any new regarding facts defendant’s behavior fact, the time of trial. In opine Dr. Rossiter does not even Rather, defendant was unfit at the time of trial. contends that likely defendant “was more than not unfit view, stand trial March 1990.” In my this conclu- sion, based on a current existing evidence, review of does not rise to the necessary level preclude application of collateral estoppel.

(No. 82536. THE PEOPLE OF THE ILLINOIS, STATE OF Appel

lee, RISSLEY, v. JEFFREY D. Appellant.

Opinion June filed

RARICK,J., joined by KILBRIDE, J., dissenting. Schiedel, Defender,

Charles M. Deputy John J. Han- Defender, lon, Assistant both of and Springfield, Anna Ahronheim, of all Chicago, of the Office the State Ap- pellate Defender, and J. David Bradford Christine A. Hill, Block, L.L.C., Jenner & Chicago, appellant. Ryan, General,

James E. Attorney Springfield, (Barbara Bernabei, Marc E Attorney, State’s of Frinceton Freiner Bertocchi, General, A. and Joel D. Solicitors Hoffman, L. Browers and Lisa Anne Assistant

William counsel), Attorneys General, Chicago, People. of of for the Daniel, L. Lawrence Marshall Karen of C. curiae 44 amici Chicago, Attorneys for Concerned Illinois & Law Professors. Snyder, E. and Jean Maclean

Locke Bowman of amici curiae for Leaders Com- Chicago, Religious munity. Rendleman, Timothy Eaton, Mary Dennis A.

J. T. Thomas, Springfield, McDermott for and Selina S. amicus curiae Illinois State Bar Association. opinion

JUSTICE FREEMAN delivered the court:

Defendant, in the Jeffrey Rissley, pled guilty circuit charges of Bureau County aggravated kidnap hearing, capital sentencing and murder. At his ping found him for the death and further jury eligible penalty mitigating that there were no factors sufficient concluded imposition penalty. Accordingly, of the death preclude on to death the circuit court sentenced defendant imprison a term of charge years’ of murder and to 15 On aggravated kidnapping. on the direct charge ment affirmed defendant’s convictions and this court appeal, (1995). People Rissley, 165 The v. Ill. 2d 364 sentence. Rissley v. Court denied certiorari. Supreme United States Illinois, Ct. 133 L. Ed. 2d 116 S. 525 U.S. (1995). pro se post- for petition thereafter filed later relief, ap- amended

conviction which petition. moved dismiss the counsel. The State pointed motion dismiss granted The circuit court State’s evidentiary an hear- proceeded and the matter part, At had not been dismissed. ing claims which hearing, conclusion of the the circuit court denied postconviction appealed relief, and defendant to this court. 134 Ill. 2d R. 651. opinion 15, 2001,

On March this court issued an judgment court, which we affirmed the holding of the circuit filing petition that defendant’s late of his could culpable negligence exception not be excused under the Hearing Following contained the Post-Conviction Act. petition decision, the issuance of our defendant filed a rehearing, argued opinion which he that our failed “culpable negligence” to define the term and therefore exception illusory. peti rendered the While pending, tion was this court took under advisement (2002), People Boclair, v. 202 Ill. 2d 89 a case in which constitutionality the of section 122—1 of the Post- Hearing question Conviction Act was called into on light granted several In fact, levels. of this we rehearing parties and ordered the to file additional briefs. 155 Ill. 2d R. 367.

Subsequent granting rehearing, to our then- governor George Ryan commuted defendant’s death imprisonment possibility sentence to natural life without parole mandatory supervised or release. Defendant appeal. thereafter moved to dismiss his denied We April explain, 4, motion on 2003. As we will the com- sentencing mutation renders moot the issues that appeal. defendant has raised in We therefore will procedural by confine our discussion to the issue raised guilt-phase the State and the issues raised the circuit Although original court. we adhere to our construction of petition statute, the untimely and find that defendant’s was agree original filed, we with defendant that our opinion provide failed to a workable definition “culpable negligence” provide term so as to the neces- sary guidance to our lower courts.

BACKGROUND previously surrounding This court detailed the facts in our the crimes for which defendant stands convicted Ill. 2d Instead appeal. Rissley, on direct opinion here, note the facts repeating pertinent them we will necessary through where original proceedings from body opinion. out the of this filed a pro se postconvic- October pursuant Hearing tion to the Post-Conviction petition Act) (725 (West 1994)). (the seq. et Act ILCS 5/122 —1 subsequently appointed The circuit court counsel to as- defendant, petition sist and counsel filed an amended pro se and the petition March 1996. Defendant’s contained, total, 21 different amended some petition claims, argued claim in it was including single which failing to counsel was ineffective appellate the 56 issues raised the various incorporate brief motions filed at the conclusion of postsentencing realleged The amended also sentencing hearing. petition ap- had raised in defendant’s direct each issue that been a wide together, pleadings presented Taken peal. allegedly ineffective as- variety regarding of claims trial and counsel. appellate sistance of both defendant’s petition to dismiss the initially The State moved time-barred, beyond it filed the time arguing that 122— 1 of Act. In response, section required timely petition defendant maintained that his been alternative, if in the argued, also filed. untimely, petition deemed petition were to be delay filing need not be dismissed because excep- an culpable negligence, of defendant’s the result Defendant contended section 122—1. provided tion advice of his counsel appellate that he had relied on the three informed him that he had on direct who appeal, file a sentencing postconvic- years from the date his his an affidavit from tion submitted petition. corroborated defen- counsel which counsel appellate gave the advice counsel allegations regarding dant’s hearing issue, defendant. After a on the the circuit court petition. denied the State’s motion to dismiss the The State thereafter filed a second motion to dismiss argued petitions. motion, the State by principles that defendant’s claims were barred of res judicata addition, and waiver. In contended State allege that defendant’s claims failed to a substantial evidentiary hearing constitutional violation such that an arguments was warranted. The circuit court heard ultimately motion, dismissed, an without evidentiary hearing, all but four of defendant’s claims. Specifically, determined that under this court’s precedent, evidentiary hearing an had to be held with respect concerning ingestion to defendant’s claims drugs psychotropic and his failure to receive a fitness hearing. hearing The court further ruled that a necessary respect allegations to defendant’s that his counsel, Hedrich, trial John had lied to him in conversa- leading up plead guilty. tions to defendant’s decision to According allegations, misrepre- to defendant’s Hedrich sented to co-counsel, Flood, defendant that his J.D. attorney, Lyon, another Andrea both concurred in the plead guilty. Moreover, decision to the court also found allegations that defendant’s that Hedrich omitted certain guilty plea facts from defendant’s motion to vacate evidentiary hearing, also necessitated an as did defen- dant’s claim that Hedrich labored under a conflict of interest. evidentiary

The circuit court thereafter held an hear- ing on each of the claims noted At above. the conclusion hearing, postconviction the circuit court denied appeal. relief, and defendant filed the instant

ANALYSIS begin by noting principles We first the familiar regarding postconviction proceedings. postconviction A prior action is a collateral attack on a conviction and 412 Brisbon, v. 236, (1995); People

sentence. 164 Ill. 2d 242 (1988). Free, v. People 367, such, 122 Ill. 2d 377 As the for, to, remedy “is not a substitute or an addendum direct (1994). Kokoraleis, v. appeal.” People 325, Ill. 2d 159 328 The scope proceeding is limited to constitutional been, been, previ matters have not nor could have adjudicated. could have ously Any issues which been not, appeal, procedurally raised direct but were are (1989)) Ruiz, v. (People 1, defaulted Ill. 2d any 132 9 previously by reviewing issues which have been decided a the doctrine of res v. judicata (People by court are barred (1987)). 357, Silagy, 116 Ill. 2d 365 In addition to these bars, procedural a defendant is not entitled to an forth in evidentiary hearing allegations unless set petition, supported by as the trial record or ac affidavits, companying showing make a substantial of a Coleman, v. People constitutional violation. 183 Ill. 2d (1998). 366, determination, all making 381 well- in the are to taken pleaded petition facts affidavits be true, and nonspecific as but nonfactual assertions which merely amount to conclusions are not sufficient Coleman, Act. Ill. 2d at require hearing under the 183 petition The dismissal of a is war postconviction only petition’s allegations ranted when the of fact —liber and in ally petitioner light construed favor of trial make a original record —fail to substantial show Coleman, 183 Ill. 2d at ing of constitutional violation. 382. On the circuit court’s decision to dismiss appeal, evidentiary hearing subject without an is petition Coleman, Ill. 2d at Determi plenary review. 183 388-89. however, nations, by subsequent made the circuit court hearing to an will not be disturbed unless evidentiary v. People Morgan, 187 Ill. 2d manifestly erroneous. (1998). Towns, v. People (1999); 182 Ill. 2d 503 I defendant’s conten- appellate Before we can address mat- important first threshold tions, must resolve we circuit court State, namely, ter whether raised on timeli- petition failing erred in dismiss (725 122—1 the Act to section grounds pursuant ness (West 1994)). he did replies, ILCS 5/122 —1 or, in the court, timely petition in the circuit that his it was alternative, can be excused because delay pertinent The dates culpable negligence. to his due issued arguments to are as follows: this court the parties’ and sentence affirming its defendant’s conviction opinion filed for writ of certiorari 1995; a 30, on defendant March 25, 1995; Court on Supreme August the United States postconviction instituted the action instant 1995; denied Supreme and the Court early October 27, 1995. for certiorari petition on November defendant’s Defendant, counsel, the filed an subsequently aid of 1, on March postconviction petition amended Timeliness of the October Petition the time filed his postconvic Around tion the twice amended section petition, legislature (West (725 1994)), 122—1 of the Act ILCS which 5/122 —1 governed the of post- the limitations institution period actions. Defendant refers to an earlier conviction both argu of in support and a later version the statute of his ments, parties controlling the the version agree but 1995, of the is the in effect in October statute version Bates, v. Ill. People filed. See 124 petition when the (1988). 81, 2d That provided: 84-86 version statute proceedings under this Article shall be commenced “No denial of for leave petition more than 6 months after the a filing the if none is appeal petition or date for such Supreme of from opinion filed or issuance the the Illinois denying of or 6 months after the date the order Court Supreme the or the date certiorari United States Court filed filing petition years such a if none is or 3 from conviction, sooner, peti- date of whichever is unless due to alleges showing delay tioner facts that the was not (West 1994). negligence.” ILCS culpable 725 5/122—1 414

We note that the yet again statute amended January 1, 1996.

The fundamental rule statutory interpretation is give effect to the intention of the legislature. We look statute, first to the words of the as the language statute is best indication of the legislative intent. statutory clear, When the is language given it must be ef fect interpretation. without resort tools of other It is proper depart plain never from language by reading exceptions, limitations, into statute or conditions which expressed conflict with clearly legislative intent. County Knox ex rel. Masterson The Highlands, v. L.L.C., (1999); 188 Ill. 2d v. People Woodard, (1997). 175 Ill. 2d controlling statute, Pursuant version to file a right postconviction action as soon expired any of the listed time specified periods elapsed. case, parties agree the first such event to transpire was the of six expiration after the months issu- opinion ance of the affirming from this court defendant’s (West See conviction sentence. 725 ILCS 5/122 —1 1994). opinion affirming This issued its conviction and March 30, sentence on 1995. Six months 30, elapsed September on mailed postconviction the clerk petition to of the circuit court of County 6, 1995, on the Bureau October clerk filed 10, petition mailing the 1995. Both October the the occurred six after filing more than months this court Accordingly, filed the opinion. its action was commenced too late. interpretation

Defendant advocates for different of the July statute. Defendant notes that to a 1995 prior only amendment the statute barred the commencement of after later of all of the listed proceedings the events. (West 1992). Indeed, only See 725 ILCS the 5/122 —1 change by made to this statute the 1995 amend- July

415 to “sooner.” See the “later” change ment was word contends eff. 1995. Defendant July Act Pub. 88— all of the version of the statute events prior that this the of direct listed in the statute “described termination argues, it is “obvious” Accordingly, defendant appeal.” limitations legislature the intended to create two or appeal, six months from the end of direct periods: urges that the years three after conviction. Defendant him, statute, applicable version of the post-July 1995 Thus, consistently. defendant contends should be read the 1995 should be post-July version statute allowing postconvic- file a understood as a defendant (a) the six months from the petition tion until earlier of (b) or years end of direct three after conviction. appeal, First, noted, clear and when a statute is previously unambiguous beyond it is to look the improper plain meaning Masterson, terms. rel. County its Knox ex 556; Moreover, Ill. 2d Ill. Woodard, 188 175 2d at 443. if we to look beyond plain language even were statute, defendant’s is undercut argument legislature’s subsequent amendment of the statute. Ef 1, 1996, January legislature again fective amended statute, this time all references to the issu removing opinion proceedings ance of this court’s and to before the Thereafter, a Supreme postconvic United States Court. six proceeding tion had to be commenced within months petition appeal the denial of a for after leave or filed, or petition days date for such a if none was filing her in the appeal after the defendant filed his or brief (or filing this after deadline days before three from date filed), years if no is or brief brief conviction, occurs sooner. 725ILCS whichever 5/122 —1 1996). (West amendment, By legislature removed any petitions doubt that must sometimes postconviction proceedings filed the termination of on direct be before Thus, legislative intent appeal. appeal 416 unconvincing

would be if even it did run counter to plain language of the statute. literally, that, Defendant also contends if read July 1995 amendment rendered much of the section “meaningless surplusage.” instance, For cert, filing observes that “six after the for months date petition [szc] could never occur sooner than denial of petition appeal, for leave to or six months after the is- cert, opinion petition sought suance anof to chal- lenge.” argues legislature that the could not superfluous language regard- have intended render ing accordingly urges give certiorari, and us to legislature by effect to the “true intent” “eliminat- ing opinion’ language construing the ‘issuance of statute.” argument

Defendant bases rule that possible, construed, if statutes should be so no term superfluous meaningless. Bonaguro is rendered or v. County Board, Electoral 158 Ill. 2d 397 Officers (1994). However, defendant overlooks the fact that his suggested interpretation very of the statute breaks the upon relies, rule of construction which he as defendant affirmatively ignore would have us opinion” the “issuance of Accordingly, argument clause. this is not convincing. ignore wording

We will not of the statute. Section speaks 122—1 in terms of four events—the first revolves petitions around the time frames associated with appeal. requirement leave to Due to the constitutional mandatory capital by court, review of cases the leave appeal provisions capital are of no relevance to cases. they apply. words, In other do not The second event listed opinion in the statute is the date of the issuance of the from this court. The third is the denial of certiorari Supreme Court, the United States and the fourth is three years By July its from date of conviction. in- statute, clearly legislature the to the amendment right postconviction the to file that thenceforth tended the of the upon occurrence expire would petition first court its case, In this this issued the listed events. any of 30, 1995. Six months on March appeal on direct opinion 30, Defendant’s date September that date 1995. from 9,1992, years three from which of conviction was October 9, not file that defendant did was October 1995. Given until Supreme for with the Court petition his certiorari 30, 25, 1995, September it was clear that August potential three dates. 1995, date was the sooner under the proceedings post- did commence not elapsed act more than months had conviction until six by plain language Accordingly, after March statute, untimely. petition of the his Culpable Negligence

Lack of Having petition decided that defendant’s was indeed untimely under section must next address we 122— contention, i.e., that if the alternative even untimely, is deemed court should affirm the petition this delay circuit court’s determination that was not due culpable negligence. to defendant’s See 725 ILCS (West 1994). 5/122—1 his petition, alleged

In his he filed October, though even postconviction petition yet petition Court had not then ruled on his Supreme law, certiorari, change which, begin- in the “due to July 1, 1995, requires on that a Post-Conviction ning years three imposition Petition be filed within by six of the denial penalty the death or within months a Petition for Supreme the United States court of Writ Certiorari, Moreover, response whichever is sooner.” petition, to the State’s motion to dismiss alleged legislature that when the amended statute 1995, his on contacted him July attorney appeal direct if to institute and advised him that defendant wished postconviction he would proceedings now have to do so years within three after his conviction. Defendant at- tached an affidavit his direct appeal counsel to his response affidavit, to the State’s motion to dismiss. counsel legislature stated when the amended the July statute in 1995 he notified all so of his incarcerated clients, including defendant. further Counsel averred that he advised defendant that he could wait until denied, certiorari was would file postcon- but have to viction petition years within three of his October 1992 Counsel sentencing. averred that he did not at any time advise defendant any there was relevance to the date that opinion appeal court’s direct was filed. supreme Counsel also stated that his office—the unit of office Appellate of the State Defender —as- sisted defendant his 1995 filing pro peti- October se tion.

The circuit court found defendant had made a good-faith effort to comply statutory with the require- ments, the delay caused defendant’s reliance on the advice of his The appellate counsel. court found that, reliance, because of this was not delay due to culpable defendant’s negligence. inquiry, therefore,

Our must focus whether allegations presented as to the circuit court are a lack culpable negligence sufficient establish of so as to petition avoid dismissal of the on the basis that it was time-barred. Defendant he maintains because relied, good faith, upon the advice of his appellate good-faith comply counsel and made a effort to with the statutory requirement, was not culpably negligent he filing of that petition. late

Our of issue upon meaning resolution this turns of “culpable negligence” the term contained in section legislature 122—1. note that not define We did body term of “culpable negligence” within the the Act.

419 Boclair, decision in court, however, in our recent This meaning term: length regarding spoke ‘[negligent defined as has been “Culpable negligence that, intentional, disregard involves conduct while actions.’ likely to from one’s consequences result 1999). (7th Culpable ed. Dictionary 1056 Black’s Law ‘something more than negligence has also been defined of, to, disregard or involving ‘an indifference negligence’ (2000). 1 Accord Negligence § 19 65 C.J.S. consequences.’ 1914) (3d Rawle, Dictionary 736 rev. Law R. Bouvier’s convey the neglect seem to (stating that would ‘culpable to blame as is ascribed neglect for idea of which carelessness, folly’). improvidence or his own ‘culpable negligence’ interpreted the Our courts have v. People consistently definitions. with these phrase (1991), Wilson, 236, impliedly 248 143 Ill. 2d approv recklessness. culpable negligence with We equated an court of the State ingly opinion highest cited ‘ negligence as describing culpable York a “conscious New action, disregard of the conse choice of course ’ 248, Wilson, 143 might Ill. 2d at quences” follow. Decina, 133, 140, People 2 138 quoting v. N.Y.2d N.E.2d (1956). 799, 803-04, 157 N.Y.S.2d 565 phrase appears culpable negligence The also in several (e.g., state statutes and court rules 55 ILCS 5/3 — (West 2000) (Counties Code); 65 ILCS 3—14044 5/10— (West 2000) (Illinois Code); ILCS Municipal 1—40 (West 2000) (Park Act); 70 System Civil Service 1210/30 (West 2000) (Park Annuity and Fund Benefit ILCS 1215/33 (West 2000) (Metro Act); Service 70 ILCS Civil 2605/4.33 Act); 110 ILCS politan Water Reclamation District 70/46 2000) (State (West Act); ILCS Civil Service Universities 2000) (Post-Conviction 1(c)) (West Act); Hearing 5/122 — 2000) (West Act); R. (Adoption 188 Ill. 2d ILCS 750 50/5 606(c)) 606(c) and, interpreting (Supreme Court Rule in rules, courts have almost those statutes Illinois something uniformly culpable negligence entails held that ordinary negligence. than greater of Civil example, For under section 2—1401 Code (735 (West 2000)), must courts Procedure ILCS 5/2 —1401 due litigants have exercised determine often whether 420 or,

diligence conversely, willfully have disregarded the process of the court were they or so indifferent to it that chargeable negligence. should culpable See Pronto Venture, Two Tishman Speyer App. Ltd. v. Monroe Ill. 274 624, (1995); Bank, 3d City 629 Klein v. Steel National 212 629, (1991); Ill. App. Cunningham 3d 638 v. Miller’s Co., 689, (1989); General Insurance 188 3d App. Ill. 694 Rees, Verson Allsteel Press Co. v. Mackworth Division of (1981). Industrial, Inc., Avis App. 99 Ill. 3d 789 Likewise, jurisdictions other ‘culpable have defined negligence’ in example, Holway similar contexts. For v. Ames, 208, (1905), 100 Me. A. Supreme 60 897 Judicial ‘culpable Court of Maine neglect’ analogous defined an carelessness, gross context as ‘less than but more than the 211, failure ordinary Holway, to use care.’ 100 Me. 60 A. contexts, at 898. In other other courts defined have culpable negligence something neglect more than mere or ordinary E.g., more than a mere failure to use care. 1994) (hold- (Fla. Baker, 224, App. Ross v. 632 So. 2d 226 ing ‘[cjulpable negligence negligence gross that is of a flagrant disregard character which a reckless evinces others’); Giordano, 90, safety 95, v. 138 State N.H. (1993) 482, 635 A.2d 484 (stating ‘[cjulpable negli- gence something ordinary is more than negligence, mere neglect, negligence or the failure to use care—it ordinary is blameable’). censorious, faulty that is or *** ‘culpably negligent’ We find that standard 1(c) contemplates something contained in section 122— greater ordinary negligence akin than and is to reckless Boclair, ness.” 202 Ill. 2d at 106-08.

We continue to adhere to the definition enunciated Bo clair. This definition than adequately more ensures portion petitioner of the statute to file permitting untimely long “alleges showing an so as he petition facts culpable was not due to his delay negligence” (725 (West 1994)) empty ILCS does stand as 5/122—1 Rather, heft gives excep rhetoric. definition to the exception tion contained section an which this 122— historically “special ‘safety court has as the viewed ” Bates, valve’ in the Act. v. Ill. 2d People

421 (1999). 1, Ill. 2d 8 189 Wright, v. (1988); People see also view long-held with our comports definition Finally, this construed “liberally general must be the Act in ques to present an person opportunity afford a convicted v. rights.” People of constitutional of deprivation tions Pier, citing v. 541, (1985), People Correa, 108 Ill. 2d 546 (1972). Kitchen, 189 v. People See also 51 Ill. 2d 98 (1999) “the Act (acknowledging that Ill. 2d hearing a fair be strictly construed that not so should be Act, i.e., of the vindication purpose denied defeated”). view, this rights, our be constitutional 122—1 section serves portion construction this it Act, apply will aims of the we further the laudable to the case at bar. bar, hold to the case at we the definition

Applying delay filing in that defendant has established Defendant’s negligence. culpable was not result of his censorious, be blameable or fairly conduct cannot labeled an indif- nor it be said that defendant’s actions evince can remained consequences. ference to the Defendant counsel, his direct whose appeal constant contact with had interpretation advice and of the statute defendant petition no question. prepared reason to timely man- every reason to believe was a what it in advance ner, submitting in fact to the circuit court of the date which counsel had informed these dispute filed. The does not petition must be State facts, that, such conduct notwithstand- argues but rather believe, culpably negligent. We ing, defendant was case, however, of this that under circumstances the untimeliness defendant did indeed establish The culpable negligence. due to his was not petition that defendant specifically case found circuit court acting in bad appeal direct counsel “were and his filing. petition for respect faith” with preparing that “it was reasonable The circuit court also found rely [defendant] on that lawyer [date] when his told him that.” After reviewing the facts of this case in conjunction with the Boclair definition of culpable negligence, we hold that the circuit court did not err denying the State’s motion to dismiss petition grounds. timeliness

II Having concluded that the circuit court did not err in denying the State’s initial motion to dismiss on section grounds, 122—1 we turn to defendant’s conten- appellate As previously, tions. noted both defendant’s pro se petitions amended contained numerous claims of ineffec- tive assistance of appeal, counsel. as it was originally court, however, briefed to this defendant identi- only fies six error, claims of three of which concern the propriety of rulings by several made the circuit court during postconviction proceedings. final Defendant’s three claims concern the constitutionality of the Illinois death penalty. Before we relating address the claims to the guilt phase of the proceedings, we it helpful believe out set a somewhat detailed factual recitation of the leading up events to defendant’s sentencing hearing.

Preplea Proceedings Defendant was arrested charges on unrelated to the present 10, 1991, murder on County, October Berrien Michigan. defendant, in custody, being While after of gave advised rights, voluntarily his Miranda state- agents ments federal as well as to law enforcement of- Michigan Illinois, ficials from both in which he participation admitted his in the aggravated kidnapping and murder six-year-old Lansing. Kahla, Kahla who Valley, Illinois, in Spring resided reported been miss- ing 28, her September mother on 1991. Defendant charged brought with the crimes and to the Bureau occurred appearance first court Defendant’s County jail.1 filed County officials 1991, after Bureau on October court him. The circuit against criminal informations to hold defendant cause existed probable ruled degree and first aggravated kidnapping charges held hearing in the case. At a and denied bond murder later, the advised both days prosecutor four intention seek court of the State’s and the circuit then scheduled in the The matter was penalty death case. court determined for date. The circuit grand jury a result, and, appointed a indigent defendant was also The defendant. circuit represent counsel without bond. that defendant be held continued its order in court on October appeared Defendant next return of two-count 1991, following grand jury’s aggravated kidnapping containing charges indictment appeared murder. Defendant degree and first at that counsel, Maloney, Matthew who court-appointed The County. defender of Bureau public time was reiterated the State’s intention seek prosecutor death in the event of conviction. penalty a trial date set plea guilty, entered a 6, January 1992. 9, 1991, received a let- circuit court

On December requested the ter from defendant in which defendant attorney. in his the termination of” judge’s “consent attorney his had little that he believed wrote him appoint case to judge interest his and asked at an attorney. This matter was addressed another 20, 1991. The emergency hearing on December status letter, and court asked defendant about circuit had reflected defendant stated that the letter although time,” it not thoughts represent “at that did defendant’s court present.” Defendant informed the his views “at the he and that attorney he with his was satisfied County. 1Spring Valley in Bureau is located wanted the disregard court days letter. Several later, at another hearing, status granted the court defense’s motion for continuance, a and defendant’s trial 27, date was reset to April 1992. The court also allowed the defense retain the services of On psychiatrist. 1992, January 8, the circuit court appointed Grundy defender, County public Flood, J.D. as additional defense counsel the case. 14,1992,

On January County Bureau Public Defender Maloney office, resigned although from the court did not allow him to withdraw from defendant’s case until Janu- ary 27, interim, 1992. In the attorney John Hedrich was appointed defender, public and Hedrich ap- entered his pearance as attorney 27, defendant’s on January 1992. February 1992,

In the circuit court granted defen- continuance, dant’s motion for a which caused defen- trial changed April dant’s date to be from to27 June 1992. The circuit also granted defendant’s motion addition, for psychological testing. defense counsel sought the appointment investigator of an order investigate defendant’s claims that Satanic cult had Kahla, kidnapped murdered her in presence, and then threatened defendant with harm if he informed authorities of these facts. The circuit court granted motion at a hearing status held on March At hearing, same status an amended indictment with respect felony-murder open count was read in again court. Defendant apprised possible of the penalties light charges, he faced in including the Moreover, death penalty. defendant was admonished that judge jury case, could have either a or a decide his including penalty the death At the phase. conclusion reading indictment, of the amended count defendant entered a plea guilty reaffirmed for a jury again desire trial. The once noted prosecutor that the State intend seek the death penalty “does if this case there is a conviction.” murder moved dismiss thereafter in place took that, the murder because charges, arguing the crime. jurisdiction over Iowa, courts lacked Illinois time, During motion. court denied the The circuit to defendant’s respect heard evidence with the court also publicity surround- a due to motion for continuance court two-day hearing, the circuit After a ing the crimes. May in motion late 1992. denied the Guilty-Plea Proceedings 1992, his from 11, changed plea defendant On June admonished The guilty guilty. circuit waiving a result regarding rights he was as defendant punishments range and the guilty plea indicated that conviction. Defendant upon were possible range rights and he understood his understood if defendant was sentences. asked potential When guilty, anything exchange plea in his promised The State then negative. in responded information the factual basis presented following for the plea. roller-skating

Kahla last seen with her friends Valley late afternoon outside her home Spring Kahla’s mother was unable September 1991. When police, her contacted and a search daughter, find she to a seeing talking A Kahla reported ensued. witness approximately truck at Ranger pickup man in a red Ford The man was described p.m. 6:30 September length mid-thirties, with medium as white male brown hair. County making were

While the authorities in Bureau investigators inquiries disappearance, into Kahla’s an County busy looking ag- Knox into nearby were 10-year-old of a child gravated criminal sexual assault 27, 1991. As a result September that occurred there on charged investigation, of that Bureau crime, for his arrest was filed. and warrant County authorities learned of County charges the Knox and were informed Knox County investigators that defendant left County 28, Knox on September 1991, and was heading Michigan, to Berrien County, driving eastward on Route which leads to County. Bureau general Defendant’s appearance and the red Ford pickup truck he driving the description matched of the man seen her talking prior Kahla As disappearance. result, Bureau County authorities identified defendant aas in suspect disappearance. Kahla’s

Law enforcement County, officials Berrien Michi- gan, arrested County defendant on the Knox charges on October 1991. After waiving his Miranda rights, agreed provide defendant authorities with information concerning Kahla’s disappearance. Defendant told authorities that he was traveling from Illinois to Michi- gan in pickup September 28, his red Ford on Eventually, Valley defendant detoured into Spring sometime the late afternoon. Defendant admitted that he was an pedophile” “active and that at that he time “hurt and seeking inside” a child for “relief.” The Kahla, he explained that saw who was roller- skating in an area defendant described as residential. Defendant his car and stopped engaged Kahla conver- sation. Kahla entered agreed defendant’s car after she go nearby with him to a convenience store buy a soda. Defendant at stopped purchased the store and two soft candy drinks and a and bar. Defendant Kahla thereafter together left the drove an store and aimless fashion around Illinois. travel,

Defendant stated that after several hours of farm, an consisting he found abandoned of several build- Clinton, ings, near Iowa. The farm was at the located end of road off of dirt a state road. Defendant hid his truck in pickup pig coop building and then entered There, he some and old mat- barn. discovered blankets and Kahla an old truck. Defendant on the bed of tresses sunrise, that, he at Defendant admitted slept there. Kahla, they then both anal intercourse performed fell asleep. later defendant, he and Kahla

According to both gunshots. frightened Both became awoke to sound vicinity. close in gunshots sounded because some hysterical Defendant stated that Kahla became they should repeatedly told point afraid, however, might that he be leave. Defendant was He then discovered, began to lose control. and, an cord inside the barn obtained electric from him, cord standing Kahla face to face with he twisted the her around the back of neck. stated red, then body limp, Kahla’s face first turned her became for ground. and fell Defendant checked a she and found that Kahla was still alive. Defendant heartbeat from then left the barn order to find out where the gunshots had come. he reentered the barn after discovered

Defendant that one around farm. He intended to untie no neck, from he returned to cord Kahla’s but when he no hear a heartbeat. lying, longer where she was could that dead and proceeded Defendant realized Kahla was body to hide her in the loft of the barn. Defendant upper then truck and left the farm. pickup returned to his proceeded Michigan, Defendant to drive where he until remained his arrest. interviews, the course of defendant’s defen-

During body dant a where Kahla’s could map drew farm in detail clothing Defendant Kahla’s be found. described body fully except and that he left clothed for noted her her authorities conducted a Subsequently, roller skates. defendant, by identified and Kahla’s search in area clothed, shoes, body found, fully ultimately except A on of an white electri- the second floor abandoned barn. cal cord was wrapped tightly around her neck. The cord an matched electric blanket found at the scene. Investiga- found truck, tors also an mattresses, old a blue bed- premises. sheet on the autopsy

An revealed that the cause of Kahla’s death was ligature strangulation from electrical cord. Kahla injuries sustained her anal vaginal areas. Forensic tests indicated that seminal matter on found Kahla’s underpants and on bed linen found in the barn could have come from defendant.

Before accepting pleas, the circuit court again, addressed defendant if inquiring anyone made any promises to him or had plead coerced him to guilty. responded in the on negative. Based the guilty pleas, the circuit court convicted defendant both ag- gravated kidnapping degree first murder. The sentencing hearing August 17, was set for

Motion to Proceedings Vacate 22, 1992, On June defendant moved to vacate his guilty plea grounds it was not knowingly or intelligently argued entered. Defendant that his counsel was ineffective for failing to him properly advise concern- ing the consequences pleading guilty. Specifically, argued that he was not advised his attorney could waive trial by jury and that defendant request addition, could a bench trial. by entering

claimed he was advised that a guilty plea he was waiving issue of whether Illinois courts jurisdiction had the charge. over murder

The circuit held hearing court on the motion to withdraw defendant’s guilty plea. The defense called Lyon, Andrea an experienced penalty death defense at- Lyon as its torney, only witness. testified that she case one discussed defendant’s of defendant’s at- Lyon torneys. surprised further testified that she was during learn this conversation defense negotiation without guilty without pleaded investigation an extensive conducting counsel’s mitigation. potential Reed, a for the State. James

Two testified witnesses County depart- sheriffs jailor with the Bureau deputy 20, 1992, the ment, jail. on spoke with defendant June not want to time, defendant told him that did At that Wren, County proba- Troy the Bureau plea. his withdraw 23, 1992, officer, spoke tion also with defendant June in order to pleaded guilty and defendant told him that he avoid trial. hearing arguments,

After the circuit court denied it had admon- defendant’s motion. The ruled consequences entering regarding ished defendant guilty plea, including fact that defendant waiv- ing guilt by determined court. right have not The court further ruled that it did believe guilty jurisdictional defendant waived the defect pleading that defendant claimed existed in the case. The sentenc- ing hearing August was then set to begin Sentencing Hearing Proceedings After the circuit court denied defendant’s motion to vacate, case. sought J.D. Flood to withdraw from the The granted circuit court the motion and Daniel appointed Bute, an La public County, assistant defender of Salle According testimony, co-counsel. to the postconviction primary during sentencing Bute acted as counsel hearing strategic and had control deci- complete over surrounding case. sions the defendant’s hearing, aggravation portion During presented testimony 11-year-old State first S.A. 28, 1991, September She testified that in the afternoon walking store with her sister she was a convenience Kewanee, pulled his red truck Illinois. alongside the road and asked S.A. for directions Route him, sug- but replied help 34. S.A. that she could gested he ask for at the directions convenience store. According S.A., to defendant tried to lure her into his by offering truck her a ride to store. and She her declined sister defendant’s offer and ran home. S.A.’s mother also daughters testified when she saw her after store, their return from the they told her that a man in a red pickup get truck “tried to them” into the truck him.

Twelve-year-old A.W knew because A.W’s ex-fiancée, mother and Debbie, were good spent friends. Defendant night Debbie A.W’s County, Illinois, house Knox on September 26, 1991. morning, On the next go A.W. was to to school and a give Defendant, defendant was asked her ride. however, did not drive Instead, A.W school. he stopped a grocery first at and bought store some donuts. He also purchased makeup some for A.W. Defendant then drove time, around for a short Galesburg then turned onto a country road. Defendant told A.W that he wanted to teach her how to drive and that there “no cops” would be countryside. they cornfield, When reached a to tie duct attempted tape. A.W.’s hands with however, He began when stopped, cry. A.W Defendant then a piece rope together. took and tied A.W’s hands passenger Defendant rolled the window and tied down end of rope other around the outside mirror. He laid breasts, A.W her back and licked her and rubbed vagina. on her penis then turned A.W. performed onto her stomach and anal upon intercourse finished, her. When defendant he told that she had A.W that, if body again, nice she wanted to do it she him hug could let him and a signaling know with a pinch. County Deputy

Knox Sheriff Tina Hartz testified that investigated concerning she the child sexual abuse case Hartz, According defendant and about week A.W incident, mother and defendant’s A.W.’s after they of defendant when suspicious became girlfriend they A.W. When given defendant had $40. learned that return, anything if defendant had wanted asked A.W cornfield, and about the incident A.W. told them Hartz that told they police. contacted A.W subsequently im- to say anything afraid of defendant she too her mediately after assault. Police Bill Illinois State Agent Hammell

Special defen- Hammell interviewed also State. testified interview, arrest. defendant During dant after his A.W. sexually to Hammell that he had assaulted admitted in engaged if Hammell asked defendant defendant had replied with children. Defendant any sexual contact other in pos- the affirmative and told Hammell that there were sibly 15 other children whom had had such with in Michigan, conduct. All lived where defendant had been all of living prior September 1991. Defendant said that and all ages children were 8 and 13 between family were the of various defendant people members Hammell, had identi- According befriended. defendant fied different by several children name and described the them, types rang- of sexual he had with each of activity ing fondling to oral and anal sex. Hammell contacted from Michigan relayed in to them the informa- authorities given tion defendant him. provided jury

Hammell also to the information 1983, In regarding July defendant’s previous convictions. living County, Michigan, in with defendant was Dallas friends, seven-year-old had a Defendant daughter. who girl stayed on numerous while he molested occasions a activity, As of this defendant was her home. result guilty charge He to the ultimately pleaded arrested. 10-year prison a He received indecency with child. aggravated Defendant pleaded guilty sentence. also 1983, an abuse, August which arose from sexual case, encounter with a 12-year-old boy. defendant performed boy. oral sex on the received a 10- year term prison for that crime as well. Defendant served some of the sentences and was on probation later put counseling. probation with Defendant’s was transferred Iowa, and defendant lived there when he until Michigan. moved to living Michigan, While defendant April 20, married on 1990. Hammell also testified that defendant told him that defendant wet bed when he was a and that him punished child his mother putting duct on his tape stepfather mouth. His and uncle would then in anal engage intercourse with defendant.

VS., 13-year-old, went testified she camping with other minors, two including her brother, Harbor, in Benton in the Michigan, summer of en campgrounds, While route to the the van the group traveling became stuck an orchard. VS.’s minors brother and the other help, went to seek leaving defendant, VS. with time during alone which an committed act of anal VS. upon intercourse Twelve-year-old went T.S. testified that he to school “stepson” during Benton Harbor year. night, 1990-91 One T.S. at the school home of grandmother After defendant’s defendant. watching defendant, televisen with T.S. and defendant went There, defendant’s bedroom. pulled defendant on T.S.’s penis until he was told to stop.

Ten-year-old D.H. met defendant at the home of his in in Michigan there, sister’s friend D.H. While and garage defendant worked on a motor. According D.H., him and grabbed attempted to remove clothing. D.H.’s

J.S., 11-year-old girl, an recounted that the sum- night staying mer of she awoke one at the while and grandmother home of defendant’s found defendant in her room. He had removed her underwear and was oral sex her. performing upon County, Michigan, deputy Danfell, Joann a Berrion sheriff, testified that she conducted an child sexual abuse investigation Michigan request at the of Bureau County result, T.S., authorities. As she interviewed D.H., and J.S. Each child told her of incidents of sexual contact with defendant. County Deputy

Bureau Sheriff Jim Reed testified that attempted jail escape by removing from the bricks from his cell wall. After Reed had thwarted at- tempt reported incident, he found that defendant attempted by hanging suicide himself. Reed rescued defendant. Defendant became violent at that time. hospital injuries Defendant was treated at a for his jail. then returned to the

Finally, testify the State called the victim’s mother to impact as to the defendant’s crimes this case had on family. her and the rest of the victim’s presented expert several witnesses in mitigation in order to establish that defendant was suf- fering from a mental disturbance at the time of the George murder. Dr. Savarese, a licensed clinical social psychosocial developmental history worker, conducted a doing, of defendant. In so Dr. Savarese interviewed police defendant and reviewed various and medical reports as well as defendant’s school records. Dr. family, Savarese also reviewed interviews defendant’s neighbors, employers. teachers, and Dr. Savarese con- cluded from the information that defendant suffered from problems mental that were attributable to traumatic throughout example, events life. defendant’s For defen- dant’s father committed suicide five months before cope defendant’s birth. order loss, with the defen- heavily tranquilized pregnant dant’s mother while with defendant. After birth, his mother mar- reportedly ried a man who suicide, also committed diagnosed one of defendant’s brothers was with leukemia. syndrome. infant death Another brother died of sudden that traumatic events took a Dr. Savarese believed these mother and heavy pre- emotional toll on defendant’s bonding that occurs dur- vented the normal mother-child years. ing a child’s formative Rossiter, testified Lyle psychiatrist, Dr. a licensed also Rossiter, to Dr. defen- According on defendant’s behalf. personality dant suffered from severe borderline Dr. sociopathic pedophilia. features disorder with Dr. same childhood events Rossiter noted the the incidents had and confirmed that Savarese described Dr. development. effect on defendant’s negative had early there indications of pointed Rossiter out were defendant’s problems, such as developmental defendant’s with attention deficit disorder being diagnosed development. history delayed speech also noted that Both Dr. Rossiter and Dr. Savarese abuse suffering from sadistic sexual reported to have and mother. Defendant claimed stepfather witness, of childhood incest. Neither been the victim actually incidents however, confirm whether these could by defendant. they occurred or whether were fabricated would not Nevertheless, diagnosis each that his stated if fabricated because change even the events been defendant’s mental were consistent with such fantasies problems. she Alber, a testified psychologist,

Dr. Diane release a condition of defendant’s treated defendant as being described defendant in 1984. She prison from depression. from suffering stress and cope unable to with relationships romantic fantasized about immature, impulsive, and that he was girls young reality and distinguish between unable progressively fantasy. backdrop relevant the factual foregoing provides

The arising guilt from the of the issues discussion our in turn. address these issues We proceedings. phase Psychotropic Drug Issue Defendant maintains that he to an auto- is entitled trial because he failed proceedings matic reversal for new a he hearing to receive fitness that was entitled receive at the correctly statute. Defendant notes that time of 21(a) of the proceedings, his trial section Criminal 104— Code 1961 that provided receiving drugs

“[a] defendant is or psychotropic who other medications under medical is entitled to a direction hearing on the issue his fitness while under medica- 21(a) (West 1992). tion.” 725 ILCS 5/104 — Citing Brandon, to this in v. court’s decisions 162 People 2d (1994), Nitz, Ill. 450 v. 173 Ill. People 2d 151 (1996), argues in circuit erred concluding necessary that a new trial was not despite the fact that taking psychotropic defendant was medication while was trial at the awaiting County jail. Bureau in alleged Defendant his se pro postconviction peti- 10, 1992, that on April tion counsel defense filed an emergency a psychiatric motion for in examination wake of attempted from the escape Bureau County jail and his attempt suicide. Defendant further the circuit alleged court denied the request.2 argued that his trial counsel was ineffective failing to advise the circuit defendant, court that “for the duration of in Jail, his time County Bureau receiving prescribed been The petition medication.” listed the following drugs that given: defendant had been sodium, propoxyphene, docusate cephalexin, Imipramine, Xanax, penicillin, ibuprofen. Defendant claimed that 2The record deny reveals that the circuit court did the mo Rather, order, tion. the court ruled previous that a entered December 1991 and which to retain psychia allowed defendant trist, Rossiter, Dr. request. covered defense counsel’s We further court, February 26, note that the circuit in an order entered 1992, granted psychological testing defendant’s motion for to be conjunction appointment done with the of Dr. Rossiter. deprived

his trial counsel’s ineffectiveness in this area entitled, hearing him of the to which he was fitness necessary. trial new The State claim on the sought dismissal this basis motion, The of waiver. circuit court denied the State’s forth in ruling allegations pro that defendant’s as set further complaint inquiry, se warranted factual at an court’s evidentiary hearing, pursuant this decision (1996). Britz, v. Ill. 2d 163 People any at the ensu- present Defendant did not evidence evidentiary hearing particular this claim ing that, under position it was defendant’s because Brandon, opinion court’s reversal was “automatic” ingestion psychotropic drugs while given defendant’s Amabile, M.D., trial. called E. awaiting Phyllis The State at Dr. Am- hearing. who was the witness principal and abile, physician psychia- a licensed board-certified trist, log examined defendant’s medical and determined drugs four different psychotropic that defendant received custody County jail Xanax, in the Bureau while at Vis- — from taril, Specifically, and Ativan. Novem- Imipramine, 1991, 1, 1991, 13, defendant through November ber Defendant, milligrams 0.5 of Xanax. received 49 doses of 1, 1991, 100-milligram on one also received November 1991, 27, through From December Janu- dose of Vistaril. 1, 1992, milligrams received six of 50 defendant doses ary further revealed that on The records Imipramine. of 1992, 8, 2-milligram received one dose January defendant 16, Ativan, 1992, March he received one that on of Amabile, Dr. According to 100-milligram dose of Vistaril. only single dose of Ativan received because unlikely that 8, 1992, extremely it was January on effect on central had an defendant’s drug would have Vistaril, Similarly, single doses system. nervous 1, on March 1991, and once on administered November an have had adverse 16, 1992, were also too isolated to Dr. defen- effect defendant. Amabile characterized administered Imipramine, six dant’s doses of December 27, 1991, January “non-therapeutic” to be “sufficiently in time the trial proximate” and were not later proceedings which commenced some six months June 1992 to have mental [defendant’s] “affected Xanax, As functioning.” ingestion for defendant’s which had prescribed during been defendant’s with- cigarette Dr. smoking, drawal from Amabile testified that ingestion of drug proximate was not in time to have enough affected defendant’s mental functioning in June 1992. Dr. Amabile noted that drug only daily custody that defendant took while during sodium, his trial proceedings was docusate a stool softener, which is not in any way psycho- classified as a tropic drug, nor it any does share of the characteristics Dr. psychotropic drug. opinion, Amabile’s medical drugs none of the ingested by defendant interfered with ability to understand the nature purpose proceedings against him or to assist his own defense.

Sergeant Bill jail Redshaw testified that County administrator the Bureau jail, where defen- dant was incarcerated from October 1991 to November According Redshaw, kept defendant was in a solitary cell for security explained that, reasons. Redshaw defendant, due to the nature of the charges against jail officials feared that defendant would not be safe general jail population. personally Redshaw interacted during year held defendant was jail and the two men were aon first-name basis. Red- shaw found to articulate, defendant be intelligent, and cooperative. alert, attentive, Defendant was did and display any unusual behavior. Redshaw testified that hallucinations, defendant did not to appear suffer from delusions, only or confusion. The time Redshaw saw agitated defendant become when County was the Bureau environment, to pursuant became a “smoke-free” jail Defendant, smoker, County orders Bureau board. adjust and to cigarettes denied his consequently was during period stated that this accordingly. Redshaw Xanax, drug seemed to taking defendant was which “quite cause to a bit.” sleep defendant attempted defendant further testified that Redshaw 7, 1992, and to com- escape jail April to from the on tried Redshaw, preceding on the According days mit suicide. 7, 1992, engage alert and did not April defendant was jail, he returned to the abnormal behavior. When He change. behavior did not and Redshaw characterized his continued to converse. Redshaw point in time as with defendant at conversations trial proceedings clear and lucid. When commenced 1992, defendant to understand nature appeared June lawyers. his and interacted with his situation hearing. Thompson Thomp- John also testified at County Bureau while deputy the chief sheriff of son was County jail. at the Dur- custody defendant Bureau daily on a basis time, saw defendant ing Thompson appeared 1992. Defendant never be until March Thompson stated that defendant disoriented or confused. things about “knowledgeable inquisitive him, where point around sometimes going were jail at the surprised Thompson it us.” resumed duties entered his day after defendant on June any difference in Thompson did not notice guilty plea. found that Thompson from March. defendant’s demeanor attentive remained conversational and openly Thompson, “appeared According to himself. on, of, point to the going of what was quite aware it, daily us about it on would talk to [defendant] engage any unusual behavior did not basis.” Defendant to all of the court and relate understand appeared in the taking place summer were proceedings fall of 1992. Reed, deputy County

James for the Bureau sheriff’s jailor during testified. Reed was a department, also jail, time that defendant was an inmate at the and regularly. According Reed, saw him to Reed defendant surroundings “well appeared to be aware” his everyone. interacted well with Defendant did not act or appear confused seemed alert. One of Reed’s duties the jail dispense prisoners. was to medication to the any Reed never saw changes behaviorial defendant as a result of the medications he took. Defendant never complained having any about difficulties in emotional his condition. Reed was responsible also for defendant’s security during detail court. During visits to times court, Reed took appeared defendant to defendant never be to confused uncomprehending or of the nature of the proceedings or on. going According Reed, what was to in court, while defendant appeared to be attentive to his lawyers judge. and to the Pierson,

Timothy jailor another at the County Bureau jail, also testified as to defendant’s demeanor while in custody. Defendant appeared always to be well oriented respect time, with place, and the circumstances around him. Pierson recalled that very defendant was courteous expressed anger only twice —when defendant lost his smoking privileges County and when Bureau Public Defender Maloney resigned January from office in According Pierson, interacted well jail staff and knew all jailors’ of the different work schedules and hobbies.

In ruling claim, on this circuit specifically court relied upon Britz, this court’s opinion People v. 174 Ill. (1996). 2d 163 The that, circuit court determined contrary assertions, to defendant’s a new trial was not required because psychotropic defendant’s medicine was administered defendant close time enough legal an proceedings to have had effect on adverse Amabile, testimony

him. of Dr. the court found Citing the each psychotropic drugs taken entry of system was out of defendant’s well before the hearing on guilty plea, subsequent plea, sentencing proceed- motion to and the vacate reasons, For that defen- ings. these concluded failing dant’s trial counsel was not ineffective ingestion of these as a basis for drugs utilize defendant’s hearing. explain, a fitness As we we cannot conclude will mat- in its resolution of this that circuit erred ter. hearing pursuant

The failure to receive a fitness to 21(a) does reversal. require section not automatic 104— (2000). Mitchell, acknowledge Ill. v. 189 2d 312 We People claim, originally pleaded, that defendant’s as was Gevas, such Brandon and v. predicated People on cases (1995), Indeed, predated 166 Ill. 2d 461 which Mitchell. changes in in his brief that various argues in psychotropic-drug that this court’s law occurred years post- over the him because jurisprudence prejudiced under that the belief operating conviction counsel and, as automatic reversal defendant was entitled an in further result, present any evidence did not need disagree. claim. We ance it clear evidentiary hearing, At the time inges this the mere published opinions from court’s drugs jail awaiting trial was psychotropic tion of while In People an reversal. v. enough trigger automatic Kinkead, (1995), the bare Ill. 2d 394 we noted 168 drugs psychotropic was treated with fact that a defendant alone, not, a new jail standing does warrant while for an matter in Kinkead fact, remanded the trial. we the circuit court was to hearing which evidentiary sur into the factual circumstances inquiry “conduct an use rounding psychotropic asserted Kinkead, Ill. 2d at 417. 168 prison.” medication while

441 “the dates circumstances included We noted those ingested such defendant] on which received [the drug treatment psychotropic medicine and whether closely enough to the time of defendant’s [was] linked him to a to have entitled plea guilty sentencing 21(a).” competency hearing pursuant section 104 — Britz, Ill. 2d at Kinkead, 168 Ill. 2d at 417. See also hearing required that no is where (noting fitness being there is no indication that defendant was treated during medication the relevant times psychotropic of the proceedings). identify case did not pleadings

Defendant’s precisely psy- when defendant received and ingested such, chotropic drugs. correctly As circuit court ordered a further factual into the inquiry circumstances ingestion drugs. of defendant’s For this psychotropic reason, agree we cannot that the change of law cited defendant on appeal unduly hampered presentation of this claim —defendant’s allegations were sufficient to dismiss, survive State’s motion to under our case but time, at the law defendant needed a further factual basis argued. achieve “automatic” reversal for which he The circuit court and correctly understood this undertook an inquiry surrounding into the factual circumstances at psychotropic defendant’s use of medication while County jail. testimony Bureau We have reviewed ad- at the that the hearing duced and conclude circuit court’s factual findings manifestly light were not erroneous. circumstances, of these the circuit court did not err in denying postconviction defendant relief on the basis stated, this claim. the fact that Simply changed law appeal pending while defendant’s was is of no moment this case because defendant’s claim would have failed pr even under our e-Mitchell case law. Counsel: Assistance

Ineffective Guilty Proceedings Plea ineffective as- Defendant contends that received sistance of during plea proceedings counsel on based his counsel’s misapprehension of the law. In order to resolve fully, forth, detail, this issue we must set in some (i) allegations concerning attorney’s (ii) at performance plea entered, the time the (iii) evidence adduced at evidentiary hearing, findings of fact made the circuit court at the conclu- hearing. sion of the previously,

As we noted defendant’s postconviction petition, amended, contained numerous claims of inef- fective assistance of trial counsel. In his affidavit filed in support of his amended petition, alleged on the morning of June Hedrich came to his cell jail County jail at the Bureau and told him that plead guilty ag- both the murder and gravated kidnapping charges that were pending against him. Defendant claimed that Hedrich told him that if jury, defendant did not waive the he “would the death get Moreover, penalty.” defendant contended that Hedrich told him that if jury, defendant did waive the he “would not get penalty” get death and that he would “life in ” without and that prison parole ‘is better than death.’ Defendant claimed that Hedrich him told that both “J.D. Lyon they Flood and Andrea told him to tell me that plead guilty.” alleged wanted me to that he if pled guilty would have Hedrich had not lied to him about Lyon’s positions guilty plea Flood’s defendant did not have “confidence” in Hedrich. because Moreover, defendant claimed that Hedrich did not tell him judge that defendant could have a hear the case jury. instead of a Defendant further maintained that he told testify Hedrich he wanted to his own behalf the hearing held on defendant’s motion to vacate.3 allegation The affidavit also contained an from defendant original pro petition petition 3Both the and the amended se testify regarding at the contained claims defendant’s desire

443 that he Hedrich told defendant he claimed that which (Hedrich) Attorney. intimidated the State’s dismiss, circuit motion to rejecting

In the State’s necessary evidentiary hearing that an court noted Hedrich’s concerning defendant’s claims respect to entry guilty prior lies to defendant alleged The circuit of interest. alleged and Hedrich’s conflict plea an into defendant’s inquiry wanted to conduct also defendant’s motion allegations that Hedrich mishandled to vacate. hearing. at the

Defendant called various witnesses defender, Flood, Grundy testified County public J.D. early January appointed that 1992 he was to defen- then-attorney, dant’s case as co-counsel defendant’s County Maloney. Bureau Public Defender Matthew Prior time, taken part approximately to that Flood had trials, chair, chair. felony 5 as first and 5 as second Flood spoke only to defendant once or twice before defendant guilty, mainly get entered his to know defendant plea and to of defendant’s case with discuss circumstances respect jurisdictional to the motion that the defense was preparing. Flood never defendant the op- discussed with pleading guilty charges, tion of to the and defendant hearing guilty plea. held on the motion In to vacate the the af- swore, petition, pro fidavit defendant filed with the se testify right “[C]ounsel informed me that I had a at the never hearing my guilty plea. on the motion to withdraw When the prosecutor argued judge to the I had not testified on the mo- *** Attorney I requested permit [sic] tion Hedrick me to take testify. request.” the stand to Mr. Hedrick refused that the af- supported petition, fidavit that amended testify swore that he told Hedrich to let him that he wanted to “during guilty plea. withdraw his Defendant further swore that my guilty plea, the Motion to Withdraw when James Reed and Troy I that I did not Wren testified that had told them want my plea guilty, again I told John Hedrich in court that withdraw that, testify I I he told me that I wanted to never said but testify Only Lyon testify could not Andrea could for me.” never solicited his views on the matter. Flood believed the State had a case strong against defendant and felt that the defense’s chance best for success in the case jurisdictional motion, rested with the because “the State of Iowa does not have a penalty.” death view,

In Flood’s Hedrich’s advice to have defendant enter a guilty plea into blind good was not advice because seeking State was penalty. death According to Flood, 11, 1992, after the June guilty plea, Flood “took the initiative preparing started [the motion to immediately vacate] any without consultation or direc- tion from defendant.” At no in point the case did defendant ever tell Flood that defendant had changed his mind regarding guilty plea. Flood testified that it was he and not Hedrich who had prepared defendant’s mo- tion to vacate the guilty plea. Defendant never mentioned to Flood that Hedrich him told that Andrea in Lyon was agreement with the to plead guilty. decision Flood stated that at the time prepared motion, he he was unaware that defendant had been advised Hedrich that Flood had in plead concurred the decision to Had guilty. Flood fact, been aware of that he would have included it in the motion ground as a another for vacating plea. complained Defendant never to Flood any about lies that may Hedrich have told him during leading the discussion up guilty to the plea.

Flood further testified that he advised defendant he calling would not be to testify at the mo- tion to vacate. Flood believed that it would be inappropri- ate for defendant to take the stand because he did not subject want to cross-examination. Flood say” stated that Hedrich had “no on the motion to vacate or litigated. how it was Flood did not calling consider Hedrich as a at the hearing witness motion to Lyon’s testimony, vacate because he believed that conjunction affidavit, with Hedrich’s sworn would be “enough Judge Hupp” plea. to cause to vacate the Hedrich, the hearing. also at Hedrich testified John ap- attorney since a licensed who has been by the circuit defender pointed County public Bureau defender, Maloney, Matthew the former public court after Hedrich, had January who the office resigned mid-1960s, Attorney in State’s been an assistant experience felony he admitted that lacked and civil matters while mostly misdemeanors litigated Indeed, conceded Attorney’s Hedrich office. the State’s represent capital not feel qualified that he did the area. As litigant experience because lacked penalty death result, concerning he attended seminars Center. Capital Resource litigation sponsored by Lyon, these he met Andrea whom Through seminars capital litigation. Hedrich considered an expert testified his views on defendant’s regarding Hedrich Hedrich, a According defense. to the State had assembled of strong guilt. case defendant’s Defendant’s statements warnings, to by had been Miranda police accompanied any police and never of misconduct complained defendant or in their of the statements. The state- taking coercion and forensic physical ments were corroborated both Early representa- evidence. the course of Hedrich’s told tion, defendant him that a satanic cult had been investigated in the crimes. Hedrich defendant’s involved any support but could not find evidence to allegations, thoughts Hedrich’s respect the claim. With own defense Hedrich the regarding strategy, considered jurisdictional the challenge charge to the murder to be had strongest legal argument and defense that defendant against pos- the State charges. Hedrich believed that overwhelming guilt sessed evidence an if the acquittal no chance of that there was realistic fact, discussing to trial. In after matters with case went case and Andrea Hedrich felt that Lyon, J.D. Flood jurisdictional question two revolved around issues —the and, proved if unsuccessful, that attempt defense’s save stage defendant’s life at the of the sentencing pro- ceedings.4 that, prior 11, 1992,

Hedrich testified to June he had Bernabei, met with the Attorney, State’s Marc and had possibility plea. discussed Hedrich told defendant agree Bernabei would not to any sentence other than in the During death case. discussion defendant concerning entry guilty of the plea, defendant never asked Hedrich Lyon what either Andrea or J.D. thought strategy. Flood Hedrich denied tell- ing defendant Lyon Flood and told him to tell that they plead guilty. wanted defendant to On 16, 1992, Lyon June Hedrich met with Andrea and told her guilty Lyon about the plea. advised Hedrich that the guilty plea ill-advised because by pleading guilty left to nothing bargain with plea arguments jurisdiction. waived such Based on Lyon’s Hedrich decided that defendant opinion, should plea, move to vacate the and he put charge Flood preparing motion. Defendant’s motion vacate was 22, filed subsequently on June an Hedrich testified about altercation that occurred between him Bernabei on June in Judge time, At the Wampler’s chambers. Bernabei “unloaded” language” torrent “abusive on Hedrich regarding Hedrich, According motion vacate. Bernabei “got up chair, grabbed out of his came over and me by muscles, upper muscles both arms and shook me postconviction by

4Hedrich’s recollection is corroborated testimony Lyon, years of Andrea some taken four earlier at the hearing guilty plea— held defendant’s motion to vacate Lyon testified that she felt that the focus of defense efforts should prosecuted have been on fact that defendant should have been i.e., jurisdiction occurred, Iowa, in the where death and on mitigation “given [Hedrich] what he told me about the nature of the evidence.” by shocked Bernabei’s at me.” Hedrich was

and shouted angered unprofessionalism by of his and was conduct by the incident did feel threatened Hedrich not conduct. angry. As result of Bernabei, but did feel a or physical to maintain encounter, Hedrich determined “get shaken from Bernabei so that would distance again.” During to examination, Hedrich was asked his direct plead guilty. explain why The to he advised defendant subject: following colloquy the first on the you “Q. you Judge why Okay. please Can tell Lanuti Judge you going plead guilty. to Tell [defendant] told were your reason for that? Lanuti they Well, jury to have a in and yes, going we were

A. through it, they going go going, if we tried were to were thing they guilty, and if found him which the whole then certain, they going to have another pretty then were said, well, it decide on and I hearing punishment twice, all they hear it’s bet- would be better don’t it they ter hear once.

Q. could have trial you you Did know that bench guilty you the case in if there was a could hear chief and jury impaneled, impaneled, have had the then as was quali- aggravation mitigation hear the and the death stage? you Did at the fied know that time? it, No, it, I I didn’t think of I didn’t discuss didn’t

A. it.” discuss

Hedrich further stated that he and Flood discussed length jury it for a trial would be better or the whether judge, Judge Hupp, eligibility to decide death aggravation/mitigation. According Hedrich, Flood was Judge Hupp that “we familiar with and Flood felt more jury aggravation mitigation do before better Judge testimony Hupp. was inter- rather than” Hedrich’s rupted point the schedule at this to accommodate testifying Hedrich returned another witness. When again: stand, the matter was broached sir, me, pick “Q. you. trying tell I’m you Thank Can up off, you we left Judge why where can tell Lanuti you plead guilty? [defendant] Well, appeared any

A. it that there wasn’t sense in the trial and he was to going guilty anyway be found and I any didn’t think going through there was sense in it twice jury going to, of a guess by front who I is that time we jury determined that was going aggrava- to hear the mitigation.” tion and

Hedrich also stated he guilty that advised the plea because it allowed the defense to prepare more time mitigation. He also considered the an attempt move to be get jury to to something impose do other than penalty. death

Defendant also testified his at the own behalf hear- ing. Defendant stated he that was more comfortable with Flood and Andrea than Lyon he was with Hedrich Hedrich because had told defendant that he did not know doing. defendant, what he According was Hedrich told that, him if defendant he pleaded guilty, would not receive the death penalty. Defendant that a believed “deal” had been reached between Hedrich and the State. further that testified when Hedrich advised him plead guilty, defendant him specifically asked what Lyon’s positions Flood’s were on the matter and that him agreed Hedrich told that both of them had to it. Although defendant had never met he Lyon, testified “high put importance” he on her opinion. Defendant would not have if pleaded guilty he had known that Flood were Lyon against it.

Defendant maintained during the course his that he testimony did not understand the ramifications of his decision to when did so in plead guilty open he June Although court on defendant acknowl- edged Judge that he had told court that Hupp open he consequences pleading guilty understood and that doing voluntarily, he was so defendant testified he so, had not truthful in those This was responses. been previously explained, Hedrich had defendant because say and do to what instructed According Hupp Judge defen- him. addressed when instructed defendant dant, Hedrich “yes judge head Hedrich his sir” when “shook tell the judge yes” “no” when to tell that defendant was that as Defendant stated head “no.” Hedrich shook truly did not understand instructions, he result of these entering plea guilty any consequences in a the open court. guilty, pleaded he testified that after had

Defendant Lyon they spoke him and told he with both Flood and agree plead guilty. they the decision to that did not with that he also maintained that he told Hedrich Defendant testify he at the motion to vacate because wanted to jailors “explain” why Reed and wanted to he told James guilty his Tim that he did not want to withdraw Wren testimony, plea. According postconviction to defendant’s did, fact, men that did not want tell both he plea. However, that he his defendant stated withdraw curry attempt them. to them in an favor with had lied acknowledged that cross-examination, defendant On Hupp, pled guilty Judge he he understood when before giving right up trial, that that he to have a but was his during judge plea proceed- he nonetheless lied the the ques- ing judge’s all of defendant answered because him. in the manner in Hedrich coached tions which communicate to defendant either Hedrich would “with yes he, Hedrich, nod or a nod no” and Bernabei while standing judge’s in front of the bench. Defendant were acknowledged guilty plea that not his this case was guilty charges pleaded before the first time he had judge. prior case, claimed,however, that in the Defendant lawyer just present case, “instructed” in the his that Hedrich had. Defendant him in the same manner acknowledged that he was the courtroom further when prosecutor occasions announced that State seeking would be death penalty the case. Defendant was aware that Attorney State’s would making be deal with any the defense in which defendant would receive a sentence than other death. Defendant admitted he told Hedrich that a satanic cult responsible for the victim’s death and also told police story the same he custody while was in in the County jail, story Bureau but was not true. testified that he informed Flood that Hedrich had told defendant that Flood also wanted defendant plead guilty. Defendant, guilty he pleaded when on June 11, 1992, knew that he date facing a trial of June it was a “matter of record” that circuit court would delay not allow another unless “something” happened. Defendant discussed the evidence against him with attorneys the investigator assigned to assist in the case. Defendant admitted that knew what evidence was that the State would use against him knew that the State had a strong case against him.

At the conclusion of the hearing, the circuit court lengthy by made a on the ruling contentions raised The defendant. court first resolved defendant’s claim regarding alleged Hedrich’s conflict of interest. The court an place found that altercation had taken between Hedrich one of judge’s and Bernabei in the chambers in the courthouse. The circuit court that although ruled a Hedrich had concerns regarding stability Bernabei’s as episode, result was of there no credible evidence that the handling altercation affected Hedrich’s of defendant’s Indeed, case. the court that the record concluded showed vacate, that defendant’s motion to had which been the altercation, very litigated fully cause of the had been the Moreover, next that the day. the evidence revealed mo- by attorney litigated tion Flood and was prepared was in the not involved him that Hedrich was solely by so and, such, as Hedrich was handling of the motion of the motion because litigation to of affect position ruled court, accordingly, The circuit any “intimidation.” failed to show evidence defendant presented that the the any effect on prejudicial altercation had that proceedings. defendant’s remain- circuit court then addressed

The of credibility it and noted that considered ing claims specifi- The court of the witnesses who testified. each it did not consider defendant’s status cally stated that assessment of cred- “with a motive” in its petitioner words, the not find defendant In other court did ibility. as a defendant. credible because his status simply less that he to respect requested to defendant’s claim With vacate, to the court at the on the motion testify hearing testimony was odds with found the circuit court Specifically, defendant’s sworn affidavits. following: noted the testimony, the has

“Now in affidavit and his testify during motion to requested indicated that he conflict, however, guilty plea. his There is a between vacate his mo- pro his affidavits. In the first affidavit filed with se [sic], guilty plea tion to he indicated that vacate testify during arguments requested the final prosecutor.5 subsequent In his affidavit filed amended his post-conviction petition, the defendant inferred his testify during testimony James request the actual affidavit, Troy Reed and Wren. that he Attorney

indicated that he told Hedrich wanted testify. testify lying That Wren he’d Reed and were he had made to them that he did never statements incorrectly being circuit referred to this affidavitas 5The guilty plea. could motion to vacate the This filed with defendant’s course, was filed possible, not be because that motion several days here hearing question. The circuit court before pro petition filed in of his se referring support affidavit relief, defendant first raised matter. postconviction where plea. Now, not want to guilty withdraw his the hearing Court, before this the defendant has admitted this af- fidavit is He false. now states that he make a did state- ment to Reed and Wren but testify the reason he wanted to Now, to explain judge. was them to the beginning with the obvious fact that the defendant’s admission of false af- credibility, fidavit casts doubts it also raises follow- ing First, issues. J.D. running Flood he testified was hearing on motion Why to vacate. not would defendant ask Flood if he testify wanted to instead of directing his comments to Hedrich? not does recall Flood any such request from the defendant. The Court also does arrangement not find seating at counsel table presented any obstacle speaking to the defendant’s to Flood.

Also, Flood testified it was his not to decision call [defendant] to the stand he because did not want the Attorney State’s to have an opportunity to cross-examine him.

* * * And finally, it not to was ineffective have the defendant testify hearing? at this He gotten would have on the stand and verified that the telling State’s witnesses were truth and he had made such a statement. He would then lying [szc] had to tell the Court that he was to State’s witnesses when he made the statement. He would have argue judge then to the to his believe that earlier testimony been a lie statements had but now is the likely changed truth. Would this have the results of the guilty plea request motion to even if vacate such a made?

The Court finds as Court there follows: finds that testify never a demand to There been may made. have some outright discussion but the defendant never made an lawyer testify. demand either Second, it was not to call the defendant ineffective the stand since would have corroborated State’s witnesses and admitted his lies.” own making rulings, specifically these the circuit court witness, Hedrich to “willing found be credible who was readily.” to admit to too shortcomings, perhaps his own “willing that Hedrich was further found The court of conversa- specific recall details if he doesn’t admit are “interesting” that “these found it tions.” The court fill attempting is precise [defendant] the areas where counsel.” in assistance of the and claim ineffective gaps no evidence that concluded that there was The court at testifying from any way prevented in defendant was sum, prove failed to that, in defendant hearing the violation stem- that demonstrated a constitutional facts the on testifying hearing at ming from defendant’s the motion to vacate. claims defendant’s

The circuit court next addressed of counsel defendant received ineffective assistance of guilty plea because entry with respect alleged The court noted that Hedrich’s lies to defendant. claim the misrepresentation the basis of defendant’s was concerning the allegedly posi- Hedrich made to defendant Lyon guilty plea. and Andrea on tion J.D. Flood in following findings made the this The circuit court respect: any

“Now, Attorney not admitted John Hedrich has has that he discussed the misrepresentation but testified guilty with Flood. He also testified that he advised plea guilty. did not recall plead Hedrich initiating Lyon’s or any inquiry about Flood position which is in contradiction to the defendant’s guilty testimony. pled Hedrich also felt the defendant knowingly, although specifically recall the entire he doesn’t allegation in specific Hedrich denied the conversation. affidavit attached to the paragraph one of post-conviction petition. amended his Now, post-conviction relief and petition in his any at no time made petitions, amended the defendant the admonitions and claim that he failed to understand Judge having Hupp at that he conversation Rather, plea position his was that guilty. time of the scenes, behind the misrepresentations had been made since involuntary. hear- plea that his a sense Now however, ing, the defendant has decided to have cake his it, and eat too. is only claiming Not that misrepresenta- tions induced him to plead guilty, he now testifies he didn’t anything understand going that was during plea guilty.

Now, in their closing arguments written the State has gone through guilty [sic] detail plea place that took open court. The plea contains numerous statements the defendant in which he indicated to the Court he charges, rights involved, understood the nature of the possible penalties, promise and that no or threats had been guilty. made order for him to plead pointed As was cross-examination, out in the defendant’s the defendant simply yes did not answer or At pointed no. times he even out to the Court and already to counsel that had areas been covered. The defendant would have this Court believe that he simply understood none these matters and was mimicking signals receiving he attorney. from his Not only that, attorney his has denied it is ludicrous for this judge Court to that a plea length believe trial on a of this recognize signals and detail not going would back and forth attorney between an and a standing *** were who within inches of him in of front the bench. The testimony that he did not the understand proceedings open day on plea court the of the and that being given signals he was attorney from his he and that promised had been a plea life sentence in return a for guilty simply They totally are not credible. are contradicted by the plea by testimony record of the and the of Mr. Hedrich. testimony defendant,

The redirect which I will detail, repeat not illuminating any should be court reviewing this matter. The defendant was asked series of leading questions helped position. willingly which his He quickly responded in the affirmative to them. On the hand, other when the defendant was confronted with the more difficult questions by on cross-examination the evasive, Attorney, deliberate, State’s he was more inconsistent in his It answers. was clear to this Court observing answering defendant’s demeanor and manner in questions certainly the defendant is able to understand before going are on and the issues proceedings the *** Court. the defendant for this Court to believe It is hard on court going open on in not understand what was did pleading he was 1992. The defendant understood June strong was confronted guilty. He understood he possible penalties involved He understood the evidence. is guilty. The defendant plead and made decision he did not understand he testifies that simply lying when his post-conviction 11. If proceedings on June true, plead are the defendant wanted petition affidavits doing it pleading guilty, he but guilty and understood totally misrepresentation. That has been based on a testimony hearing where his at this contradicted all. It says proceedings now he didn’t understand making testimony up he was his appears to the Court that along. he went * Now, original claim that certain returning regarding misrepresentations position Flood guilty plea, him as this Lyon prior were made to stated, the has the burden previously Court has any took not recall proving place. that this Hedrich does only person conversation. The other conversa- such Court, however, already has This tion was defendant. testimony is to be determined that the defendant’s guilty plea and the defendant believed on issue that he filed already lying has admitted to his affidavit defendant, accordingly, post-conviction petition. in the The does not have to ac- is not a credible witness. The Court cept testimony simply one has because no else contra- dicted it.” testimony on to that defendant’s

The court went note alleged further contradicted regarding Hedrich’s lies was any attempt never made by the fact that defendant that sooner, despite the fact misrepresentations the raise motion to regarding the presented issues later Lyon on Andrea plea centering the guilty vacate motion. The court in a postsentencing motions filed any misrepre- that prove that defendant failed found Moreover, him. the made to sentations were prove any concluded that defendant failed to misrepresentations made himto were basis of his guilty plea. plea The court found defendant’s voluntarily complete understanding made with of “what possible penalties rights were and what his were.” against foregoing backdrop

It is factual that we address defendant’s claim of ineffective assistance of respect guilty plea. counsel with to his Defendant makes attempt specifically challenge no in this court to majority findings of the circuit court’s from the eviden- (i) tiary hearing, regarding i.e., that Hedrich lied to him (ii) Lyons’ positions guilty plea, Flood’s and on the testify defendant told Hedrich he wanted to at the mo- (iii) tion vacate, that Hedrich labored under a of Rather, conflict interest. defendant contends that his be convictions must reversed and the cause remanded for legal misap- because, a new trial aas result Hedrich’s prehension, explain Hedrich failed to to defendant that judge guilt the law him allowed to have the trial hear the phase argues jury. of the trial instead of Defendant provided Hedrich ineffective assistance counsel “goal” having jury because Hedrich’s avoid hear —to the evidence “twice”—could have been achieved without giving up right his to trial. urges outset,

At we note that defendant this court qualifications to first examine Hedrich’s lack utter experience “repeated incompetence” acts specifically improper before we examine advice gave during plea Hedrich to defendant discussions. According defendant, other these considerations will impact acknowledge our resolution of claim. We having experience capital Hedrich admitted no litigation. points qualifica- lack of to Hedrich’s judge recognized tions and that the trial fact

457 affirma- however, the record incorrect, because tion is Flood appointed that the circuit tively establishes ap- was even Hedrich in this case co-counsel before to serve as co-counsel appointed Flood pointed. was Therefore, Maloney. we Matthew predecessor, Hedrich’s ap- that Flood was intimation disagree with defendant’s shortcomings. for Hedrich’s as compensation pointed acts of “repeated Moreover, not consider we will allegedly Hedrich claims that defendant incompetence” the plea discussions that do not relate committed bearing no on that have defendant and Hedrich knowingly entered into plea defendant’s whether argument that Instead, focus on the intelligently. we namely, whether the has raised in this appeal, defendant mistaken advice constitutes ineffective assistance reversal is required. counsel such that Challenges allege ineffective as guilty pleas which subject are to the set forth sistance of counsel standard 668, Ed. 2d 466 U.S. 80 L. Washington, Strickland v. (1984). 674, Lockhart, 52, U.S. 104 Ct. 2052 Hill v. 474 S. 203, 366, (1985); 57, 209, 88 L. Ed. 2d 106 S. Ct. 369-70 (1991). 61, 2d 67 Huante, v. 143 Ill. Counsel’s People attorney Strickland if the conduct is deficient under plea that failed to ensure the defendant entered Huante, Ill. 69. To voluntarily 143 2d at intelligently. there must that is prejudice, establish show that, errors, but for counsel’s probability a “reasonable insisted pleaded guilty and would have would have 2d L. Ed. Hill, to trial.” 474 U.S. at going 106 S. Ct. at will as- respect prong, to the first Strickland we With of this Hedrich purposes appeal sume for option existed realizing deficient in not during guilt/innocence phase bench trial note, however, postcon- that defendant’s proceedings. We asked reveals that defendant was testimony viction when whether he understood that right to trial included the right both to have a judge either or a hear jury case, instances, answers varied. some did responded that, that he not understand but in other instances he responded that he did. In this respect, we agree with the ruling circuit court’s testimony was oftentimes “evasive” and “inconsistent.” it Therefore, be regardless could said that of Hedrich’s legal misapprehension, defendant did indeed know the right judge to have a guilt phase decide the and his plea knowingly However, made. testimony because the is equivocal, give we will the benefit of the doubt will assume that defendant did not know he could a judge guilt. have chosen have determine his There- fore, we turn to prejudiced by whether defendant was the Hedrich’s legal words, mistake. In other we must determine whether there is a probability “reasonable that, errors, but for pleaded counsel’s he would not have Hill, guilty and would have insisted on to trial.” going 59, 210, 474 U.S. at 88 L. Ed. 2d at 106 S. Ct. at 370. prejudice Courts have stressed that prong of the Hill-Striókland test may a pose difficulty some cases because it is no means obvious how a court is to the probability determine that a defendant would have gone to Supreme trial. The United States Court noted a showing that performance ineffective affected Hill, plea required. outcome process is See 474 59-60, 210-11, at L. U.S. 88 Ed. 2d at 106 S. Ct. at 370- However, a allegation bare that had counsel not been during discussions, deficient plea defendant “would have pleaded differently gone enough to trial” is States, prejudice. Key v. United establish 806 F.2d (7th Huante, 73; Gar 1986); 139 Cir. accord 143 Ill. 2d at (7th 1988). States, v. gano United 852 F.2d Cir. legal interpreta- Hedrich admitted to his erroneous during testimony, tion his which was heard in open on his own testified 5, 1996. Defendant on December Despite the fact 6, 1996. on December behalf record, matter advice was Hedrich’s mistaken that, had testimony in his never stated right to have a him correctly advised about Hedrich phase during guilt hear the evidence judge guilty pleaded not have defendant would proceedings, trial, regard- going to instead insisted on have would have might additional considerations less of what other Indeed, point no in his at plead guilty. him to motivated anything that or intimate testimony did defendant assert Rather, defendant support such a conclusion. would “no on put importance under oath that he stated of Hedrich.” opinion or advice argues ap-

Notwithstanding above, defendant not have he because he would peal prejudiced had he known that could have pleaded guilty trial and have guilt determine his a bench still judge out, sentencing. pointed decide As we have jury had a however, a defendant ineffective assistance alleging during plea proceedings counsel must still establish that, for the mistaken prejudice. allegation The bare but advice, trial, on a defendant have insisted without would more, enough. alone, is an something Standing not such *** “subjective, self-serving, is insufficient allegation satisfy prejudice.” the Strickland for requirement (6th Tennessee, 1201, 1988), v. F.2d 1206 Cir. Turner 858 902, grounds, 492 U.S. 106 L. Ed. 2d vacated other (1989). for 559, Appeals 109 S. 3208 As the Court Ct. noted, the First Circuit has that, for self-serving but

“[Appellant’s] statements pleaded have not inadequate advice he would counsel’s unaccompanied by a claim innocence or the guilty, either any he have plausible that could articulation of defense trial, opted insufficient demonstrate raised had he is added.) United States required prejudice.” (Emphasis (1st 1396, 1995), LaBonte, Cir. rev’d on v. 70 F.3d 1413 460 grounds, 751, 1001,

other 520 U.S. 137 L. Ed. 2d S. Ct. 117 (1997). 1673 We believe that the same conclusion obtains this case. allege does not now he innocent, that is nor does he claim to have any plausible defense that he could have raised had he chosen a argu- bench trial. At oral , ment defense counsel that entry maintained of the guilty plea precluded defendant from vi- investigating a able respect defense with sanity. However, to defendant’s at no point postconviction in these proceedings has sought investigation establish what such an would have produced. Our review total record in this case convinces us that not a is case in which psychiatric and psychological totally evidence lack- ing. As we detailed previously, several mental health practitioners upon testified defendant’s behalf at the sentencing hearing. testimony This should have served as the basis for further exploration by postconviction any counsel of potentially viable insanity defense that precluded by Hedrich’s improper plea guilty advice. Indeed, argument oral following question was asked of counsel: “During plea, time since the has there any been that sug- evidence unearthed would have gested any way there would have been an insan- ity replied negative. defense?” Counsel in the We further note during the plea proceedings, defendant admit- ted kidnapping driving Kahla and her across state ultimately lines where he sexually assaulted her, strangled has never those repudiated sworn “ Thus, admissions. ‘does not maintain ... that he is indictment, innocent of the in the or charges ” plausible charges defense those v. exist[s].’ Czere (5th Butler, 1987), 833 F.2d 64 quoting Cir. United (9th 1986). Sutton, States v. Cir. F.2d facts, Given these defendant has established the prejudice required under Strickland. carefully

We have reviewed all the transcripts subsequent original trial and case, from both apprised was proceedings. postconviction that range and of sentences rights his constitutional crimes with for each of the upon he faced conviction appearances ad- charged in several court which he was The made clear to State guilty plea proceeding. dition earliest court from its penalty its intent to seek the death testimony Defendant’s own postconviction appearances. that was aware all the conclusion supports plea. he entered into his of this when us that Our of the record also convinces review proceed- in the passive participant defendant was as On the as have this court believe. ings he would now take the had the contrary, defendant wherewithal interests, as look for his own initiative and out complaining letter to the trial judge December time) (Maloney, at that appointed about his counsel clearly The shows that demonstrates. record further lying legal defendant is not beneath and his own police of a representatives claim of the involvement Satanic —his subsequent testimony cult the crimes at issue and his fact, a lie as a that this was stand testament does his in an jailers attempt admission that lied to curry Our indicates plea proceedings favor. review paying Judge Hupp that defendant attention to and following proceedings any plea independent from Hedrich. unsolicited “coaching” Defendant’s judge with the evidence of responses interaction are fact, postconviction as- notwithstanding defendant’s merely mimicking signals given sertion that he was testimony him point from Hedrich. We also out that the jailors guards provided yet from the defendant’s into demeanor perspective another Each that defendant talked awareness. one indicated proceedings about with him a manner indicated to him that defendant understood nature charges against proceedings the ing. him and the he was fac-

Finally, ignore varying and, we cannot the at times, positions somewhat inconsistent that defendant has during postconviction proceed- taken ings. the course of these postconviction pleadings, alleged

In his defendant simply regarding that Hedrich had lied himto Flood’s Lyon’s guilty plead in concurrences decision the light guilty plea and, involuntary. fact, of that his was in essence testimony

During postconviction his at the evidentiary hearing, put defendant maintained that importance opinion “no on the or advice of Hedrich” single plead guilty that the him element which led Lyon the fact that Hedrich told him that Flood and appeal, drops Now, him wanted to do so. in this defendant purported all reference to the lies Hedrich told him dur- ing plea their discussions and instead on the fact focuses by during that he was misadvised Hedrich those discus- grant sions. We note that to defendant a trial new this require case would this court to conclude that defendant upon lawyer relied advice from a whom defendant swore upon. frequent oath under not to have relied Defendant’s changes position, damag- record, evinced in are ing credibility of his claims and cannot be disre- garded. story changes exigencies Defendant’s to suit the of the moment. light disagree facts, of all these we “great

defendant that doubt” exists about whether knowingly pleaded guilty, notwithstanding defendant regarding availability Hedrich’s mistaken belief of a during guilt phase bench trial of the trial. After considering entirety, including the record its all of testimony postconviction evidentiary adduced hearing, agree finding we with the circuit court’s plea defendant entered into the in order to use admis- guilt leniency sentencing gain jury. sion of from plea entered his are satisfied Thus, we intelligently, knowingly confidence that our such Strickland, See “undermined.” is not the outcome Ct. at 2068. 698, 104 S. Ed. 2d at 80 L. U.S. at Sentencing Issues opinion, raises in this noted earlier As we sentencing phase concerning of his issues several been rendered have that these issues believe trial. We appellate An issue commutation. the Governor’s moot controversy. presents no it or is abstract is moot when (2002). People Blaylock, An issue 319, 325 202 Ill. 2d v. during change if moot circumstances can become reviewing prevent appeal pendency anof People being v. Jack effectual relief. to render from able (2002). removes a 286, son, 2d 294 Commutation 199 Ill. replaces judicially imposed lesser, it with sentence and People executively imposed v. ex rel. Johnson sentence. (1913); Murphy, Black’s Law 564, see Ill. 566 257 1999). (7th Dictionary Therefore, the commuta ed. 274 sentencing See, moot. issues rendered defendant’s tion e.g., 31, 38, 235 S.E.2d Commonwealth, 218 Va. Lewis v. (1977); 87, 88, Mitchell, Or. 396 P.2d v. 239 320, 325 State (1964). 572, 573

CONCLUSION denying post- judgment The circuit court’s relief is affirmed. conviction

Affirmed. dissenting: RARICK, JUSTICE opinion respectfully of the court dissent from I appeal have been should I the instant because believe pursuant to dismiss. motion to defendant’s dismissed court has stated: This “ that no court has held this ‘By numerous decisions appellant of an than that clearly established right is more 464 appeal, regardless protest appel dismiss his of the *** lee. appellant always [Citations.] The in an appeal may *** merits, appeal dismiss before decision

the effect such parties dismissal is to leave the where they were before the appeal People was taken ***.” ex rel. Bristow, 101, (1945), Waite v. quoting 391 Ill. Ill First National v. Savings Bank Union Bank & State of Kewanee (1932). Co., 21, Trust Ill. 22 Safeway Accord Co. v. American Insurance Arbitration (1993). Ass’n, App. 247 Ill. 3d 358-59 case, In this moved the ap for dismissal of peal after the Governor death commuted his sentence to imprisonment. object natural life The did State because, defendant’s motion dismiss from the State’s perspective, point doing there was no so: dismissal would have left defendant’s for aggravated convictions intact, kidnapping and murder as well as respective years sentences of 15 and natural It no life. makes sense for this court to deny defendant’s motion to dismiss his so that it can an him in appeal opinion issue leaves the same have position appeal would been pursuant been request. dismissed its current procedural appeal actual posture, presents this no is controversy nothing and this court’s decision more advisory an rel. v. opinion. People than ex Partee Mur See (1990). circumstances, 133 Ill. 2d Under the phy, opinion an is simply unnecessary. from joins

JUSTICE KILBRIDE this dissent. notes by appointing Flood to assist Hedrich. Defendant’s asser-

Case Details

Case Name: People v. Rissley

Court Name: Illinois Supreme Court

Date Published: Jun 19, 2003

Citation: 795 N.E.2d 174

Docket Number: 82536

Court Abbreviation: Ill.