                                  Illinois Official Reports

                                          Appellate Court




                              People v. Rivera, 2014 IL App (2d) 120884



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      JOSE J. RIVERA, Defendant-Appellant.



District & No.               Second District
                             Docket No. 2-12-0884



Filed                        February 19, 2014



Held                         The appellate court upheld the dismissal of defendant’s postconviction
(Note: This syllabus         petition alleging that defense counsel, in a prosecution for aggravated
constitutes no part of the   arson, was ineffective in failing to tender an instruction on the lesser
opinion of the court but     included offense of criminal damage to property and in not allowing
has been prepared by the     defendant to make the decision as to whether that instruction should be
Reporter of Decisions        tendered, since even though the decision is a matter of trial strategy,
for the convenience of       the decision belongs to defendant, but the affidavit defendant attached
the reader.)                 to his petition merely stated that he was not given a choice about the
                             instruction, and by not stating that he would have chosen differently
                             and why, he did not establish how he was prejudiced by his counsel.




Decision Under               Appeal from the Circuit Court of McHenry County, No. 05-CF-865;
Review                       the Hon. Joseph P. Condon, Judge, presiding.



Judgment                     Affirmed.
     Counsel on                Karen Munoz and Catherine K. Hart, both of State Appellate
     Appeal                    Defender’s Office, of Springfield, for appellant.

                               Louis A. Bianchi, State’s Attorney, of Woodstock (Lawrence M.
                               Bauer and Jay Paul Hoffmann, both of State’s Attorneys Appellate
                               Prosecutor’s Office, of counsel), for the People.

     Panel                     JUSTICE McLAREN delivered the judgment of the court, with
                               opinion.
                               Justices Hutchinson and Hudson concurred in the judgment and
                               opinion.




                                                OPINION

¶1        Defendant, Jose J. Rivera, appeals from the dismissal of his petition filed under the
       Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). We affirm.

¶2                                          I. BACKGROUND
¶3         Following a jury trial, defendant was convicted of one count of aggravated arson (720
       ILCS 5/20-1.1(a) (West 2004)). Defendant appealed, raising contentions regarding the
       sufficiency of the evidence and ineffective assistance of counsel, including an argument that
       counsel failed to tender a jury instruction and verdict forms on the lesser included offense of
       criminal damage to property (720 ILCS 5/21-1 (West 2004)). This court affirmed his
       conviction. See People v. Rivera, No. 2-09-0450 (2010) (unpublished order under Supreme
       Court Rule 23).
¶4         Defendant then filed a petition under the Act, raising five issues of ineffective assistance of
       both trial and appellate counsel, including a contention that he received ineffective assistance
       “when trial counsel chose not to tender a jury instruction on the lesser-included offense of
       criminal damage to property rather than affording the Defendant the right to make that
       decision.” The State filed a motion to dismiss, and the trial court heard argument. In granting
       the motion to dismiss, the trial court addressed only the issue of the lesser-included-offense
       instruction, finding that trial counsel “was perfectly justified in proceeding as he did on the
       whole ball of wax rather than tender a lesser included [offense instruction].” This appeal
       followed.

¶5                                          II. ANALYSIS
¶6        Defendant contends that the trial court erred in granting the State’s motion to dismiss his
       postconviction petition. A postconviction proceeding is a collateral attack on a conviction and
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     “affords only limited review of constitutional claims not presented at trial.” People v. Harris,
     224 Ill. 2d 115, 124 (2007). The scope of such a proceeding is limited to constitutional issues
     that have not been, and could not have been, previously adjudicated. Id. “Any issues that could
     have been raised on direct appeal, but were not, are procedurally defaulted, and any issues that
     have previously been decided by a reviewing court are barred by res judicata.” Id. at 124-25.
¶7       The Act establishes a three-stage process for adjudicating a postconviction petition. If a
     petition is not summarily dismissed at the first stage, it advances to the second stage, where the
     State may move to dismiss the petition. People v. Pendleton, 223 Ill. 2d 458, 472 (2006). If a
     petition survives the first stage and advances to the second stage, the defendant bears the
     burden of making a substantial showing of a constitutional violation. Id. at 473. During
     second-stage proceedings, all well-pleaded facts that are not positively rebutted by the trial
     record are taken as true. Id. If a substantial showing is set forth, the petition advances to the
     third stage for an evidentiary hearing; if such a showing is not made, the petition is dismissed.
     People v. Edwards, 197 Ill. 2d 239, 246 (2001).
¶8       While defendant raised five issues in his postconviction petition, he raises only one issue
     on appeal: his “right to decide which jury instructions to tender was violated by ineffective
     assistance of counsel where trial counsel did not allow [defendant] to decide whether to tender
     the lesser-included instruction–criminal damage to property.” To obtain relief on a claim of
     ineffective assistance of counsel, a defendant must satisfy the two-pronged test set forth in
     Strickland v. Washington, 466 U.S. 668 (1984). Under this test, the defendant must show that:
     (1) counsel’s representation fell below an objective standard of reasonableness; and (2) the
     defendant was prejudiced by counsel’s deficient performance. People v. Hodges, 234 Ill. 2d 1,
     17 (2009). Regarding the reasonableness of counsel’s performance, the defendant must prove
     that counsel made errors so serious, and that counsel’s performance was so deficient, that
     counsel failed to function as the “counsel” guaranteed by the sixth amendment. People v.
     Easley, 192 Ill. 2d 307, 317 (2000). Counsel’s performance is to be measured “by an objective
     standard of competence under prevailing professional norms.” Id. To establish deficiency, the
     defendant must overcome the strong presumption that counsel’s challenged action or inaction
     might have been the product of sound trial strategy. Id. The defendant demonstrates prejudice
     by showing that counsel’s errors were so serious as to deprive him of a fair trial, and the
     prejudice prong is satisfied where the defendant demonstrates a reasonable probability that, but
     for counsel’s unprofessional errors, the result of the proceeding would have been different.
     People v. Munson, 171 Ill. 2d 158, 184-85 (1996). A “reasonable probability” exists if that
     probability sufficiently undermines confidence in the outcome of the trial. Strickland, 466 U.S.
     at 694. Failure to demonstrate either prong is fatal, and a claim may be disposed of on the
     prejudice prong alone, without deciding whether counsel’s performance was deficient.
     Munson, 171 Ill. 2d at 184. In an appeal from a second-stage dismissal, our review is de novo.
     Pendleton, 223 Ill. 2d at 473. We may affirm the dismissal of a postconviction petition on any
     basis supported by the record. People v. Davis, 382 Ill. App. 3d 701, 706 (2008).
¶9       In his direct appeal, defendant raised the issue of ineffectiveness of trial counsel for failing
     to tender a jury instruction regarding criminal damage to property. See Rivera, No. 2-09-0450.
     This court found that the evidence that defendant set the fire recklessly was overwhelming,
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       while the evidence that he set it knowingly was not; therefore, counsel “could have
       decided to give defendant a fair chance at acquittal rather than almost guarantee him a
       conviction of a Class 4 felony,” and thus defendant did not establish that counsel’s
       performance was objectively unreasonable. Rivera, slip order at 5. In a slight twist, defendant
       now argues that counsel was ineffective for failing to allow him to decide whether to tender
       lesser-included-offense instruction. Defendant attached to his petition an affidavit in which
       made the following relevant statements:
                    “6. That at the conclusion of the evidence, my attorney briefly discussed with me
                the submission of jury instructions. During this conversation, he was confident that I
                would be acquitted and advised me that he was not going to submit a jury instruction
                on the lesser included offense of criminal damage to property.
                    7. That I was not given a choice as to whether or not to submit the lesser included
                offense as a jury instruction by my attorney, nor did my attorney explain to me any of
                the possible consequences of this decision.
                    8. That I did not take part in the jury instruction conference with the Judge[,] nor
                was I ever asked by the Judge whether I, personally, made the decision to omit the
                lesser included offense from the jury instructions.”
¶ 10       While the decision whether to submit a lesser-included-offense instruction is uniquely
       one of trial strategy, the decision ultimately belongs to the defendant. People v. Brocksmith,
       162 Ill. 2d 224, 229 (1994). If no lesser-included-offense instruction is tendered, it may be
       assumed that the decision not to tender such an instruction was the defendant’s, after due
       consultation with trial counsel. People v. Medina, 221 Ill. 2d 394, 409-10 (2006).
¶ 11       The case of People v. Barkes, 399 Ill. App. 3d 980 (2010), is instructive. In Barkes, the
       defendant raised in his postconviction petition several claims of alleged ineffective assistance
       of trial counsel. In determining whether the defendant was entitled to an evidentiary hearing,
       this court looked closely at the allegations in the petition and the supporting affidavit.
       Regarding the claim that counsel refused to allow the defendant to waive a jury trial, the
       defendant alleged that “he told counsel that he wanted a bench trial but counsel refused,
       defendant that counsel ‘was running the show and [defendant] was getting a jury trial.’ ” Id.
       988. This court concluded that the defendant was entitled to a hearing on that claim. 1 We
       found that the trial court had properly dismissed the claim that counsel refused to allow the
       defendant to testify, because, while the defendant alleged that he desired to testify in order to
       refute allegations made by the victim, he failed to specify which allegations he would have
       refuted. Id. at 989-90. The defendant “did not indicate that had he been called to testify he
       would have stated that he did not have sexual intercourse with A.H. or that he was not in a
       position of trust, authority, or supervision over her, the central issues in the case.” Id. at 990.
       Thus the defendant’s assertion was “conclusory” and did not establish prejudice. Id. The
       defendant’s allegation that counsel asserted to him that the defendant could not fire him and

          1
             In addition, we noted that in such a situation prejudice is presumed if there was a reasonable
       probability that the defendant would have waived a jury trial in the absence of the alleged error.
       Id. at 988.
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       hire another attorney did not constitute ineffective assistance for denying him counsel of
       choice, because the defendant alleged only that, as a result of counsel’s statement, he decided
       not to retain attorney Fred Morelli. “Absent an allegation that Morelli was ready and willing
       to enter an appearance *** or at least that defendant had the funds to hire private counsel,”
       the defendant had failed to establish prejudice. Id. at 991. The defendant was entitled to an
       evidentiary hearing on his claim that counsel had failed to advise him about mandatory
       consecutive sentences, because, in addition to stating in his affidavit that he was never told
       this information, the defendant stated that if counsel had informed him, “he likely would
       have accepted” the State’s plea offer. Id. at 992.
¶ 12       Common to the claims on which the Barkes defendant was granted an evidentiary hearing
       by this court was the inclusion of specific actions that the defendant wanted to take and
       allegations of how counsel’s actions defeated them: the defendant “told counsel that he
       wanted a bench trial but counsel refused” (id. at 988); the defendant “likely would have
       accepted” a plea offer but for counsel’s failure to inform him of mandatory sentencing issues
       (id. at 992). Conversely, the defendant’s claims were insufficient where they were vague or
       “conclusory” and failed to show that the defendant’s specific wishes were specifically
       frustrated (the defendant did not say to what he would have testified or that he had, or even
       could have, hired the other attorney).
¶ 13       Here, defendant stated in his affidavit that he “was not given a choice as to whether or not
       to submit the lesser included offense as a jury instruction by my attorney.” However,
       defendant never stated in his affidavit that he would have chosen to submit the
       lesser-included-offense instruction. Defendant’s allegation is general and fails to specify that,
       had he been given the choice, he would have decided to submit the instruction; such an
       assertion is conclusory and may be disregarded. Id. at 990. Defendant raised only the
       violation of his right to choose whether to submit the instruction; in not stating that he would
       have chosen differently from his attorney and relating to the trial court, and to this court, why
       he would have done so, defendant has failed to establish prejudice. Thus, we find no error in
       the trial court’s dismissal of defendant’s postconviction petition.

¶ 14                                    III. CONCLUSION
¶ 15      For these reasons, the judgment of the circuit court of McHenry County is affirmed.

¶ 16      Affirmed.




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