{ "id": 3646152, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN BONE, Defendant-Appellant", "name_abbreviation": "People v. Bone", "decision_date": "1987-04-10", "docket_number": "No. 3-86-0243", "first_page": "412", "last_page": "417", "citations": [ { "type": "official", "cite": "154 Ill. App. 3d 412" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "381 N.E.2d 74", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "64 Ill. App. 3d 276", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3329948 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/64/0276-01" ] }, { "cite": "426 N.E.2d 340", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 973", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3101016 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0973-01" ] }, { "cite": "490 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. 2d 334", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3167278 ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0334-01" ] }, { "cite": "466 U.S. 648", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204502 ], "weight": 3, "pin_cites": [ { "page": "659" }, { "page": "668" }, { "page": "2047" } ], "opinion_index": 0, "case_paths": [ "/us/466/0648-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "488 N.E.2d 513", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "109 Ill. 2d 449", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3125912 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-2d/109/0449-01" ] } ], "analysis": { "cardinality": 578, "char_count": 11356, "ocr_confidence": 0.767, "pagerank": { "raw": 1.6708948769372137e-07, "percentile": 0.6959463659850439 }, "sha256": "5782960baf6eff5a3c3c244a280a4222f88a95b33f03453b21ad7417cd88be55", "simhash": "1:1c6ed04e73775dc8", "word_count": 1821 }, "last_updated": "2023-07-14T21:36:22.457227+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN BONE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BARRY\ndelivered the opinion of the court:\nThe petitioner, Steven Bone, was convicted of murder, felony murder, and two counts of armed robbery. (111. Rev. Stat. 1979, ch. 38, pars. 9 \u2014 l(aX2), 9 \u2014 1(a)(3), 18 \u2014 2.) On direct appeal, this court vacated the felony murder conviction and remanded the case for resentencing. On resentencing, the trial court imposed concurrent sentences of 40 years for murder and 20 years for armed robbery. This court affirmed the sentences.\nThe petitioner then filed a pro se petition for post-conviction relief. The trial court ordered that counsel be appointed to represent the petitioner and gave defense counsel 45 days to file an amended petition. Following a hearing on the petition, the court granted the State\u2019s motion to dismiss the post-conviction petition. The petitioner appeals the order of dismissal.\nOn appeal, the petitioner first argues that he was denied effective assistance of counsel when his attorney, in his closing argument, conceded the petitioner\u2019s guilt of felony murder and armed robbery. Further, the petitioner contends that his appellate counsel was also ineffective in not raising the issue on direct appeal.\nThe record shows that the petitioner pleaded not guilty to all of the charges. The State\u2019s evidence, presented in part through the testimony of one eyewitness and the stipulated testimony of two other eyewitnesses, showed that the petitioner walked into a gas station, shot and killed an attendant without provocation, then demanded that the other attendant give him the money in the cash registers. The State also presented evidence that the weapon belonged to the petitioner and that the petitioner was in the immediate vicinity of the station before and after the offenses.\nAfter the State rested its case, the petitioner expressly refused to take the witness stand, despite his counsel\u2019s advice that he should testify. The petitioner confirmed his decision to the judge out of the presence of the jury. Having no witnesses, the defense rested its case.\nDuring closing arguments, defense counsel argued at length that the evidence left a reasonable doubt regarding whether the petitioner had shot the attendant intentionally or accidentally. The essence of counsel\u2019s argument was that the State had not proved the intent element necessary to convict the petitioner of murder. While making this argument, which defense counsel repeatedly stated was limited to the murder charge, counsel said, \u201cWell, you heard the evidence and I heard the evidence, and I certainly would agree that he did perform the acts that caused the death of [the victim].\u201d\nThe petitioner\u2019s attorney made no arguments or admissions specifically regarding the felony murder and armed robbery charges. The petitioner argues, however, that the quoted statement admitted by implication the petitioner\u2019s guilt of felony murder and armed robbery.\nOur analysis of this case proceeds from People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513. In Hattery, the defendant was charged with murder and pleaded not guilty. Nonetheless, the defendant\u2019s trial counsel admitted during his opening statement that the defendant had done everything the prosecution alleged in its opening statement. The defense counsel went so far as to state that the defense was not asking the jury to find the defendant not guilty and that in fact the jury would find him guilty. During the trial, the defense counsel advanced no theory of defense, presented no evidence, and made no closing argument. Instead, counsel attempted to show through cross-examination that the defendant had murdered three people because he believed a codefendant would have murdered the defendant\u2019s family if he did not do so.\nOn appeal, the defendant argued that he received ineffective assistance of counsel. The Illinois Supreme Court first noted the traditional test for determining ineffective assistance of counsel claims as set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. Under the Strickland test, a defendant must show: (1) that his counsel\u2019s performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel\u2019s professional errors, the result of the proceeding would have been different.\nThe Hattery court went on to find, however, that some acts of counsel are so likely to prejudice the accused that prejudice will be presumed. In this category, the court included a defense counsel\u2019s failure to subject the prosecution\u2019s case to meaningful adversarial testing, thus denying the defendant his sixth amendment rights and making the adversarial process itself presumptively unreliable. People v. Hattery (1986), 109 Ill. 2d 449, 488 N.E.2d 513, citing United States v. Cronic (1984), 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047.\nThe Hattery court then stated that in the case at bar the defense attorney\u2019s concession of the defendant\u2019s guilt was unequivocal. Further, the court stated that the defendant\u2019s counsel had, in fact, offered no defense since compulsion was not a defense to an offense punishable by death, but was only a possible mitigating factor which might preclude imposition of the death penalty. The defense counsel\u2019s trial strategy, said the court, was totally at odds with the defendant\u2019s earlier plea of not guilty. There was no evidence that the defendant had consented to his attorney\u2019s strategy, and such consent would not be presumed from a silent record. Accordingly, concluded the court, even when no theory of defense was available, given the decision to stand trial, counsel must hold the prosecution to its heavy burden of proof beyond a reasonable doubt. Counsel could not concede his client\u2019s guilt in hope of obtaining a more lenient sentence where a plea of not guilty had been entered unless the record adequately showed that the defendant knowingly and intelligently consented to his counsel\u2019s strategy. The court held that such a concession by counsel was per se ineffective assistance of counsel. People v. Hattery (1986), 109 Ill. 2d 449, 488 N.E.2d 513.\nIn Hattery, the Illinois Supreme Court delineated a per se exception to the general case-by-case analysis set forth in Strickland. Problems and abuses could stem from this exception if it were to be too loosely applied. For instance, a defense counsel who had conducted a completely adversarial trial could see that the State had a particularly strong case. During closing arguments, such counsel, while essentially arguing that the State had not met its burden of proof, could slip in an admission of his client\u2019s guilt. Then, the defendant could accept the verdict if it was to his liking. If it was not to his liking, he need only point out on appeal counsel\u2019s admission of guilt. Under the per se prejudice rule, the defendant would automatically receive a new trial. Such a trial tactic, which is especially foreseeable in death penalty cases, could be repeated indefinitely until the State\u2019s case weakened sufficiently through the passage of time or the defendant happened to get a favorable jury.\nThis hypothetical situation is certainly not present in the case at bar. We offer it only to illustrate why we believe the supreme court intended that the stringent per se exception should be applied only when the facts of the case fit squarely within those found in Hattery. In all other cases, we find that the supreme court intended that the case-by-case, two-part Strickland test should continue to be applied. See also People v. Weir (1986), 111 Ill. 2d 334, 490 N.E.2d 1.\nIn the instant case, the facts differ in several, significant respects from those found in Hattery. Here, no admission of guilt was made during opening statements. The petitioner\u2019s counsel vigorously cross-examined the State\u2019s witnesses and attempted to present evidence through the petitioner\u2019s testimony. The petitioner expressly refused, on the record, to testify, despite his counsel\u2019s advice. During closing arguments, defense counsel offered a viable defense to the murder charge. Counsel\u2019s allegedly incriminatory statement is considerably more vague than counsel\u2019s concessions in the Hattery case. The statement clearly does not admit the defendant\u2019s guilt for murder and only admits his guilt for felony murder by implication, if at all. Further, even if we agree that the statement conceded the defendant\u2019s guilt of felony murder, the point is moot since we previously vacated the felony murder conviction. As for armed robbery, we find that the statement, taken in its proper context, is far too vague and extenuated to be an admission of guilt as set forth in Hattery. Accordingly, we find that the general, two-part Strickland test should be applied to the instant case.\nWe are not convinced, given the vagueness, brevity, and context of the defense counsel\u2019s statement, that his performance fell below an objective standard of reasonableness. However, assuming for argument\u2019s sake that it did, we find that there is not a reasonable probability that the results of the proceeding would have been different had counsel not made the statement in question. The State\u2019s evidence was strong and convincing. The defense counsel offered one of the few viable defenses available to the defendant. Counsel in no way admitted the defendant\u2019s guilt of murder, yet the jury convicted him on that charge. Accordingly, we find that defense counsel\u2019s statement did not sufficiently prejudice the defendant\u2019s case to have made any difference in the outcome.\nGiven our decision, we need not address the petitioner\u2019s contention that his appellate counsel was also ineffective in not raising the issue on direct appeal.\nSecond, the petitioner argues that the cause must be remanded for further proceedings because of the failure of his appointed counsel to file a certificate pursuant to Supreme Court Rule 651(c) (87 Ill. 2d R. 651(c)) indicating that he consulted with the petitioner, examined the trial record, and made any necessary amendments to the pro se post-conviction petition.\nFailure to file a Supreme Court Rule 651(c) certificate is harmless error if an examination of the record clearly indicates that counsel met the requirements of the rule. (People v. Ford (1981), 99 Ill. App. 3d 973, 426 N.E.2d 340.) When the record is incomplete or silent, the reviewing court will presume that the trial judge ruled or acted correctly. People v. Hamilton (1978), 64 Ill. App. 3d 276, 381 N.E.2d 74.\nIn the instant case, the record shows that a hearing was held on the motion to dismiss. However, no transcript or bystander\u2019s report of what occurred at this hearing is included in the record. We must therefore presume that the trial court ruled correctly and that the petitioner\u2019s counsel met the requirements of Supreme Court Rule 651(c).\nThe judgment of the circuit court of Peoria County is affirmed.\nAffirmed.\nSCOTT, P.J., and HEIPLE, J., concur.", "type": "majority", "author": "JUSTICE BARRY" } ], "attorneys": [ "Karen Munoz, of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "John A. Barra, State\u2019s Attorney, of Peoria (Rita Kennedy Mertel, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN BONE, Defendant-Appellant.\nThird District\nNo. 3-86-0243\nOpinion filed April 10, 1987.\nKaren Munoz, of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJohn A. Barra, State\u2019s Attorney, of Peoria (Rita Kennedy Mertel, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0412-01", "first_page_order": 436, "last_page_order": 441 }