                                                                                  FILED
                                    2014 IL App (4th) 120887                      October 8, 2014
                                                                                   Carla Bender
                                          NO. 4-12-0887                        4th District Appellate
                                                                                     Court, IL
                                  IN THE APPELLATE COURT

                                           OF ILLINOIS

                                       FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, )   Appeal from
         Plaintiff-Appellee,         )   Circuit Court of
          v.                         )   McLean County
MICHAEL B. BROWN,                    )   No. 08CF181
         Defendant-Appellant.        )
                                     )   Honorable
                                     )   Robert L. Freitag,
                                     )   Judge Presiding.
____________________________________________________________

              JUSTICE POPE delivered the judgment of the court, with opinion.
              Justices Knecht and Turner concurred in the judgment and opinion.

                                            OPINION

¶1            Defendant, Michael B. Brown, appeals the trial court's first-stage dismissal of his

postconviction petition, arguing the court erred in finding the petition frivolous and patently

without merit where he raised the gist of a meritorious claim of ineffective assistance of trial

counsel. We reverse and remand for second-stage proceedings.

¶2                                      I. BACKGROUND

¶3            Because the facts are well known by the parties and have been extensively

recounted by this court in its prior opinion in this case (People v. Brown, 406 Ill. App. 3d 1068,

952 N.E.2d 32 (2011)), we reiterate only those facts necessary to resolve the issues raised on

appeal.
¶4            This case arises from a February 12, 2008, incident where Calvin and David Walls

were shot and killed by defendant following an altercation at defendant's apartment. During the

altercation, defendant fired at least 14 shots, which resulted in at least 11 gunshot wounds.

Thereafter, the State charged defendant with, inter alia, six counts of first degree murder in the

deaths of Calvin and David Walls (720 ILCS 5/9-1(a)(1), (a)(2) (West 2008)), and two counts of

aggravated battery with a firearm for gunshot wounds to David and Calvin's brother, Levar

Walls, and defendant's cousin, Montell Jones (720 ILCS 5/12-4.2(a)(1) (West 2008)). Defendant

maintained he shot the Walls brothers in self-defense.

¶5            Following defendant's April 2009 jury trial, the following colloquy took place

during the jury instruction conference regarding whether the jury would be instructed on second

degree murder:

                       "THE COURT: Before we conclude then, let me bring up

              the subject, because I want again the record to be clear, the defense

              has requested in this case, and the court has ruled it will give

              instructions regarding self-defense and defense of a dwelling.

              Defense has not requested any instructions on second degree murder,

              and I just want to, for the record, I want to clarify, [defense counsel],

              that you have considered and consulted with your client on the issue

              of the tendering of second degree instructions and that you have

              decided, and the defendant has decided, that you do not wish to

              tender those instructions.




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            [DEFENSE COUNSEL]: Judge, we have had a full

conversation and discussion about the legal ramifications of the

decision. I have told [defendant] it is one of the four decisions he has

to make as a defendant. He has expressed to me today and on a prior

occasion he does not wish the jury to be instructed on second degree.

            THE COURT: [Defendant], as your attorney just indicated,

sir, you have been charged in the indictment with the offense of first

degree murder. There is what is often referred to as a lesser included

offense of second degree murder. And at your request based upon

the evidence that's been presented in this case, the court would

instruct the jury on the offense of second degree murder, that is, that

they would have the option of determining whether or not you're

guilty of first degree murder and if so then determining whether there

was a mitigating factor to reduce it to second degree murder.

[Defense counsel] has indicated that you have discussed these issues

with your counsel. Is that correct, sir?

            THE DEFENDANT: Yes, sir.

            THE COURT: All right. Do you feel like you've had

enough time to talk to him about that issue?

            THE DEFENDANT: Yes, sir.

            THE COURT: Do you feel that you understand what that

issue is?


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                          THE DEFENDANT: I feel it's too confusing of an issue for

              the jury.

                          THE COURT: All right. You do feel that you understand the

              issue of second degree murder after talking to your counsel?

                          THE DEFENDANT: Yes.

                          THE COURT: Now, have you decided based on the advice

              he has given you that you do not want the jury instructed on the issue

              of second degree murder?

                          THE DEFENDANT: Yes, sir.

                          THE COURT: All right. And this is your decision?

                          THE DEFENDANT: Yes, sir.

                          THE COURT: Do you have any questions at all at this time

              about that?

                          THE DEFENDANT: No sir." (Emphasis added.)

¶6            Thereafter, the jury found defendant guilty of two counts of first degree murder of

Calvin and David and aggravated battery with a firearm for shooting Levar. Defendant was

acquitted of aggravated battery with a firearm with respect to Montell.

¶7            The trial court sentenced defendant to natural life in prison for each first-degree-

murder conviction, to run concurrently with a 30-year prison term for the aggravated-battery-

with-a-firearm conviction.

¶8            On direct appeal, defendant argued (1) the trial court erred in submitting the initial-

aggressor instruction to the jury middeliberation, (2) the evidence was insufficient to convict,


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and (3) he was entitled to a $5-per-day credit against fines imposed. In February 2011, this court

affirmed the convictions and remanded to the trial court for modification of the credit against

fines. Brown, 406 Ill. App. 3d at 1084, 952 N.E.2d at 45. In September 2011, a petition for

leave to appeal was denied. People v. Brown, No. 112245 (Sept. 28, 2011).

¶9            In June 2011, defendant filed a pro se postconviction petition under the Post-

Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2010)). In his petition,

defendant alleged ineffective assistance of counsel for counsel's failure to inform defendant he

would be subject to a natural life sentence if found guilty of both counts of first degree murder.

Specifically, defendant stated:

              "Here, prior to the jury instruction conference, trial counsel informed

              the defendant that he could tender an instruction for second degree

              murder to the jury which would allow the jury to consider whether he

              committed first degree murder or second degree murder, but it would

              also give the jury a way to find him guilty of murder. Further, trial

              counsel advised that because the State withdrew the death penalty

              and due to the fact that the defendant didn't have a prior conviction

              for first degree murder[,] he faced concurrent sentences of 20-60

              years of imprisonment if he was found guilty of both first degree

              murder charges because the deaths were simultaneous. However,

              trial counsel never informed the defendant that a natural life sentence

              of imprisonment was mandated if he was found guilty of both

              charges[,] nor that the trial court would be allowed to rely on two


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              sentencing factors that required the imposition of a natural life

              sentence."

¶ 10          Defendant attached to the petition a letter written to him from his trial counsel

dated April 17, 2009, the date of the guilty verdicts, wherein counsel stated, in relevant part:

              "Sentencing will occur after the posttrial motion. First degree murder

              is punishable by 20 to 60 years in prison at 100% time. Personal

              discharge of weapon which causes the death carries an additional 25

              years at 85% time. For the court to impose natural life, it would have

              to find a prior conviction for first degree murder[,] which does not

              exist as these convictions are simultaneous. Further, I do not believe

              the first degree murder sentences can be imposed consecutively. It

              would be unrealistic to expect a sentence less than 45 years

              (minimum on murder and the enhancement for discharge of the

              firearm[)]. What may be problematic is the aggravated battery

              conviction can be run consecutive (6 to 30) and probably will as the

              [S]tate will argue it is mandatory that it does."

¶ 11          According to defendant, had he known he would face natural life in prison, he

would not have agreed with counsel's advice during his jury trial to forego the tendering of a

second-degree-murder instruction to the jury.

¶ 12          In August 2012, in a written order, the trial court dismissed the petition as frivolous

and patently without merit. The court found the decision to forego the second-degree-murder

instruction was not objectively deficient based on the court's admonishments and the fact


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defendant clearly preferred, as a matter of trial strategy, to give the jury only the options of guilty

of first degree murder or acquittal of first degree murder on the grounds of self-defense. The

court further found, even though counsel may have been incorrect in advising defendant of the

maximum penalty he faced if found guilty of first degree murder of both victims, the record

reflected at the arraignment the court had fully advised defendant of the potential penalties he

faced, including natural life in prison.

¶ 13          Defendant filed a timely notice of appeal and the trial court appointed the office of

the State Appellate Defender (OSAD) to represent defendant. Thereafter, OSAD filed a motion

to withdraw as counsel under Pennsylvania v. Finley, 481 U.S. 551 (1987), asserting no

meritorious issues could be raised. On April 2, 2014, we denied OSAD's motion. People v.

Brown, 2014 IL App (4th) 120887-U.

¶ 14          This appeal followed

¶ 15                                       II. ANALYSIS

¶ 16          On appeal, defendant argues the trial court erred in dismissing his postconviction

petition at the first stage of the postconviction proceedings where he sufficiently set forth the gist

of an ineffective-assistance-of-counsel claim. We agree.

¶ 17          The Act (725 ILCS 5/122-1 to 122-7 (West 2010)) establishes a three-stage process

for adjudicating a postconviction petition. People v. Beaman, 229 Ill. 2d 56, 71, 890 N.E.2d 500,

509 (2008). At the first stage, the trial court must review the postconviction petition and

determine whether "the petition is frivolous or is patently without merit." 725 ILCS 5/122-

2.1(a)(2) (West 2010). "[A] pro se petition seeking postconviction relief under the Act for a

denial of constitutional rights may be summarily dismissed as frivolous or patently without merit


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only if the petition has no arguable basis either in law or in fact." People v. Hodges, 234 Ill. 2d

1, 11-12, 912 N.E.2d 1204, 1209 (2009). A petition lacks an arguable basis either in law or in

fact where it "is based on an indisputably meritless legal theory" "which is completely

contradicted by the record." Hodges, 234 Ill. 2d at 16, 912 N.E.2d at 1212.

¶ 18           In the first stage of a postconviction proceeding, the allegations of the petition,

liberally construed and taken to be true, need only state "the gist of a constitutional claim."

(Internal quotation marks omitted.) People v. Edwards, 197 Ill. 2d 239, 244, 757 N.E.2d 442,

445 (2001). The "gist" means the essence, the main point or part (Merriam-Webster's Collegiate

Dictionary 493 (10th ed. 2000)), as opposed to a factually complete statement of the claim

(Edwards, 197 Ill. 2d at 244, 757 N.E.2d at 445). By requiring, in the first stage, only "the gist

of a constitutional claim," the supreme court intends to set "a low threshold." (Internal quotation

marks omitted.) Edwards, 197 Ill. 2d at 244, 757 N.E.2d at 445. As such, only "a limited

amount of detail" is required in the petition, and the petition need not make any legal arguments

or cite any legal authority. (Internal quotation marks omitted.) Edwards, 197 Ill. 2d at 244, 757

N.E.2d at 445.

¶ 19          On appeal, defendant argues the trial court erred in dismissing his postconviction

petition at the first stage where he sufficiently set forth the gist of an ineffective-assistance claim.

Ineffective-assistance-of-counsel claims are reviewed under the two-pronged standard set forth

in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must prove (1)

his attorney's actions constituted errors so serious as to fall below an objective standard of

reasonableness; and (2) the deficient performance prejudiced defendant in that, but for the

deficient performance, a reasonable probability exists the trial would have resulted in a different


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outcome. People v. Evans, 209 Ill. 2d 194, 219-20, 808 N.E.2d 939, 953 (2004). Defendant

must prove both prongs of the Strickland test in order to prevail. Evans, 209 Ill. 2d at 220, 808

N.E.2d at 954. At the first stage of postconviction proceedings, however, a defendant need

establish only it is arguable counsel's performance fell below an objective standard of

reasonableness and he arguably was prejudiced as a result. People v. DuPree, 397 Ill. App. 3d

719, 737, 922 N.E.2d 503, 518 (2010).

¶ 20          According to defendant, his trial counsel's performance was deficient when counsel

incorrectly advised him regarding the potential sentences he faced on the two convictions for

first degree murder. Defendant maintains had he known a natural life sentence was mandatory if

he was convicted of two murders, he would have asked the jury to be instructed on second

degree murder. (Indeed, we note if counsel himself had known natural life was mandatory, he

may well have advised defendant to request a second-degree-murder instruction.) Defendant

contends he was prejudiced because it is at least arguable the jury would have convicted him of

that crime instead of first degree murder.

¶ 21          It is undisputed defendant was subject to mandatory natural life sentences on the

first-degree-murder convictions for having caused the death of more than one person (730 ILCS

5/5-8-1(a)(1)(c)(ii) (West 2008)). The letter from his trial counsel attached to his postconviction

petition clearly demonstrates he was advised of the incorrect sentencing range. In addition, the

trial court never admonished defendant a natural life sentence was mandatory if he was convicted

of two murders. Brown, 2014 IL App (4th) 120887-U, ¶ 29. Instead, the court told defendant he

" 'could be sentenced to *** natural life' " and " 'could be sentenced' " to 20 to 60 years'

imprisonment. Brown, 2014 IL App (4th) 120887-U, ¶ 6. Defendant had the right to decide


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whether to tender a second-degree-murder instruction. People v. Brocksmith, 162 Ill. 2d 224,

229, 642 N.E.2d 1230, 1232 (1994). However, defendant was provided with incorrect

information regarding the sentence he faced. As such, his ability to make an informed decision

regarding the instruction may have been impaired. Thus, we find counsel's performance

arguably fell below an objective standard of reasonableness. We note, while the State argues the

decision not to request an instruction was strategic and matters of trial strategy are immune from

ineffective-assistance claims, we fail to see how a "strategy" based on a fundamental

misunderstanding of the law can be considered a true strategy. See People v. Pugh, 157 Ill. 2d 1,

19, 623 N.E.2d 255, 263 (1993) (rejecting the State's strategy argument where defense counsel's

advice was clearly attributable to a misapprehension of the law).

¶ 22          Having found defense counsel's performance arguably deficient, however, does not

end our analysis. An ineffective-assistance claim also requires a showing of prejudice to the

defendant from the deficient performance. Evans, 209 Ill. 2d at 219-20, 808 N.E.2d at 953.

"Prejudice" exists if there is "a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different." People v. Manning, 241 Ill. 2d

319, 326, 948 N.E.2d 542, 546-47 (2011) (citing Strickland, 466 U.S. at 694). "[T]he prejudice

prong of Strickland is not simply an 'outcome-determinative' test but, rather, may be satisfied if

defendant can show that counsel's deficient performance rendered the result of the trial unreliable

or the proceeding fundamentally unfair." People v. Jackson, 205 Ill. 2d 247, 259, 793 N.E.2d 1,

9 (2001); Evans, 209 Ill. 2d at 220, 808 N.E.2d at 953-54 ("a reasonable probability that the

result would have been different is a probability sufficient to undermine confidence in the

outcome—or put another way, that counsel's deficient performance rendered the result of the trial


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unreliable or fundamentally unfair"). Again, for first-stage purposes, a defendant need only

establish it is arguable he was prejudiced. DuPree, 397 Ill. App. 3d at 737, 922 N.E.2d at 518.

¶ 23         Defendant argues if his counsel had properly advised him regarding his sentence he

would have requested a second-degree-murder instruction. Defendant maintains if the jury were

so instructed, there exists a reasonable probability it would have found him guilty of second

degree murder instead of first degree murder. The State argues the decision not to request the

second-degree-murder instruction was trial strategy. While we recognize the decision may have

been trial strategy, we also observe counsel's fundamental misunderstanding of the potential

penalty may well have caused him to advise defendant not to request the instruction.

¶ 24         Second degree murder is a lesser mitigated offense of first degree murder. People

v. Jeffries, 164 Ill. 2d 104, 122, 646 N.E.2d 587, 595 (1995). A defendant is guilty of second

degree murder if the elements of first degree murder are established but a statutory mitigating

factor also exists. See 720 ILCS 5/9-2(a) (West 2008). Here, the jury could have convicted

defendant of second degree murder if he established by a preponderance of the evidence either

he was acting under a sudden and intense passion as a result of serious provocation or believed

he needed to exercise deadly force to defend himself, even though his belief may have been

unreasonable. See 720 ILCS 5/9-2(a), (c) (West 2008); 720 ILCS 5/7-1(a) (West 2008). A

defendant is entitled to a second-degree-murder instruction when "slight" evidence which the

jury could believe supports it. People v. Everette, 141 Ill. 2d 147, 156, 565 N.E.2d 1295, 1298-

99 (1990).

¶ 25         Moreover, where, as here, the evidence supported, and the trial court gave, a self-

defense instruction, the court must give a second-degree-murder instruction if requested by


                                              - 11 -
defendant. In People v. Washington, 2012 IL 110283, ¶ 56, 962 N.E.2d 902, the supreme court

reaffirmed its prior holding in People v. Lockett, 82 Ill. 2d 546, 553, 413 N.E.2d 378, 382 (1980),

which in fact mandates instructing the jury on second degree murder whenever the evidence

supports instructing the jury on justifiable use of force and the defendant requests it.

¶ 26          Here, the trial court determined the evidence supported giving a self-defense

instruction. The court also found sufficient evidence supported giving a second-degree-murder

instruction if so requested. While conflicting testimony was presented as to what transpired,

evidence exists to support defendant's version of events. The presence of that evidence shows

defendant's allegations are not completely rebutted by the record. As such, it is arguable a

reasonable probability exists the jury, if presented with a second-degree-murder instruction,

would have convicted defendant of second degree murder instead of first degree murder.

¶ 27          Thus, it is at least reasonably arguable defendant was prejudiced when the second-

degree-murder instruction was not tendered. As a result, we cannot say defendant's

postconviction petition failed to present the gist of a constitutional claim. Accordingly, we

reverse the trial court's order dismissing defendant's petition and remand for second-stage

proceedings, including appointment of counsel if requested by defendant. See 725 ILCS 5/122-

2.1(b) (West 2012). We note our findings herein are for the limited purpose of determining

whether defendant satisfied the gist standard sufficient to survive a first-stage dismissal.

¶ 28                                    III. CONCLUSION

¶ 29          For the foregoing reasons, we reverse the trial court's first-stage dismissal of

defendant's postconviction petition and remand for second-stage proceedings.

¶ 30          Reversed and remanded.


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