{ "id": 249355, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES PATRASSO, Defendant-Appellant", "name_abbreviation": "People v. Patrasso", "decision_date": "1994-02-23", "docket_number": "No. 1\u201492\u20143182", "first_page": "1087", "last_page": "1093", "citations": [ { "type": "official", "cite": "271 Ill. App. 3d 1087" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "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": "413 N.E.2d 1316", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "90 Ill. App. 3d 840", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2586610 ], "year": 1990, "pin_cites": [ { "page": "308-09" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/202/0290-01" ] }, { "cite": "562 N.E.2d 219", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "204 Ill. App. 3d 732", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2576995 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "743-44" }, { "page": "744" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0732-01" ] }, { "cite": "584 N.E.2d 291", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "222 Ill. App. 3d 631", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5263664 ], "year": 1990, "pin_cites": [ { "page": "655" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/0631-01" ] }, { "cite": "365 N.E.2d 122", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "48 Ill. App. 3d 1002", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3370233 ], "pin_cites": [ { "page": "1008" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/48/1002-01" ] }, { "cite": "589 N.E.2d 966", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "226 Ill. App. 3d 798", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5238039 ], "year": 1977, "pin_cites": [ { "page": "804" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/226/0798-01" ] }, { "cite": "189 N.E.2d 293", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "27 Ill. 2d 393", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5357529 ], "year": 1992, "pin_cites": [ { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0393-01" ] }, { "cite": "385 N.E.2d 649", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. 2d 286", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994719 ], "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0286-01" ] }, { "cite": "401 N.E.2d 523", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "78 Ill. 2d 500", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3073388 ], "year": 1978, "pin_cites": [ { "page": "505-06" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/78/0500-01" ] }, { "cite": "465 N.E.2d 682", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 152", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3631476 ], "year": 1980, "pin_cites": [ { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0152-01" ] }, { "cite": "538 N.E.2d 481", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "128 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3229038 ], "pin_cites": [ { "page": "81" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0066-01" ] }, { "cite": "609 N.E.2d 304", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "154 Ill. 2d 227", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4821172 ], "weight": 2, "pin_cites": [ { "page": "233-34" }, { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0227-01" ] }, { "cite": "600 N.E.2d 1160", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "151 Ill. 2d 19", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3292180 ], "weight": 4, "pin_cites": [ { "page": "24" }, { "page": "24" }, { "page": "24" }, { "page": "35", "parenthetical": "exact argument considered and rejected on direct appeal is res judicata on appeal of trial court's denial of defendant's post-conviction petition" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0019-01" ] } ], "analysis": { "cardinality": 705, "char_count": 13277, "ocr_confidence": 0.71, "pagerank": { "raw": 5.5631665044581806e-08, "percentile": 0.349787188365036 }, "sha256": "ff5f66ec0ca4ed1b63c21fbc552782024e2b9acb9596548d84260797e45b281a", "simhash": "1:a960fc4e3b251ce3", "word_count": 2141 }, "last_updated": "2023-07-14T19:52:56.134317+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. JAMES PATRASSO, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GREIMAN\ndelivered the opinion of the court:\nFollowing a bench trial, defendant James Patrasso was convicted of two counts of attempted murder and two counts of aggravated battery and sentenced to 60 years\u2019 imprisonment for each count of attempted murder to run concurrently, and seven years\u2019 imprisonment for each count of aggravated battery to run concurrently with the attempted murder sentences. After defendant unsuccessfully appealed his conviction (see People v. Patrasso (1st Dist. 1984), No. 1 \u2014 84\u2014 0467 (unpublished order under Supreme Court Rule 23)) (Patrasso I), he filed a petition for leave to appeal which the Illinois Supreme Court denied.\nThereafter, defendant filed a petition for post-conviction relief (Ill. Rev. Stat. 1991, ch. 38, par. 122 \u2014 1 et seq.) which the trial court denied. Defendant now appeals the denial of that post-conviction relief on grounds that: (1) he received ineffective assistance of counsel at trial and at the post-trial stage (i.e., on his motion for new trial and on direct appeal); (2) the Illinois extended-term statute\u2019s \"brutal or heinous\u201d provision is unconstitutional (Ill. Rev. Stat. 1983, ch. 38, par. 1005 \u2014 5\u20143.2(b)(2)); and (3) the trial court abused its discretion in imposing an extended-term sentence without providing him with notice of such intention.\nWe affirm the trial court.\nOn August 29, 1983, defendant was charged with two counts of attempted murder and four counts of aggravated battery for the shootings of Guy Sisco and George Boulahanis which occurred on February 13, 1982, although the indictment read \"February 13, 1983.\u201d On February 13, 1982, defendant entered a bar, pointed a gun at close range at the two unarmed men and repeatedly fired the weapon, seriously injuring both men. See Patrasso I, slip op. at 2.\nAfter a bench trial conducted on September 27, 1983, the court found defendant guilty of two counts of attempted murder and two counts of aggravated battery. On November 3, defendant offered a post-trial motion to dismiss the indictment on grounds that he was not afforded due process of law because of the variance between the date of the offense as alleged by the indictment and the date of the offense proved at trial by the State. The trial court held that defendant was reasonably apprised of the date of the offense and that he waived his right to dismiss the indictment since he failed to move for dismissal on this basis at the pretrial stage. The court then imposed sentence.\nDefendant retained another attorney to proceed with his motion for new trial which alleged that: (1) defendant was denied effective assistance of counsel at trial since his attorney relied on the variance of dates without advising defendant of this strategy; and (2) the indictment should have been dismissed because the variance was material and defendant relied on it as a defense. After a hearing conducted on February 2, 1984, the court found none of defendant\u2019s arguments persuasive and considered the evidence of his guilt overwhelming.\nDefendant appealed, raising the same issues argued at trial as well as an abuse of discretion by the court in imposing a sentence under the statutory extended-term provision (Ill. Rev. Stat. 1983, ch. 38, par. 1005 \u2014 8\u20142). This court affirmed defendant\u2019s conviction and sentence, and defendant then filed a petition for leave to appeal which the Illinois Supreme Court denied.\nAfter again engaging new counsel, defendant filed the post-conviction petition at issue which the trial court denied on August 14, 1992.\nUnder Illinois law a post-conviction petitioner is not entitled to an evidentiary hearing as a matter of right. (People v. Titone (1992), 151 Ill. 2d 19, 24, 600 N.E.2d 1160, citing Ill. Rev. Stat. 1983, ch. 38, par. 122 \u2014 6.) Rather, the petitioner has the burden to establish a substantial deprivation of rights under the Federal or State Constitution. (Titone, 151 Ill. 2d at 24.) Dismissal of a post-conviction petition is a matter within the trial court\u2019s discretion which will not be disturbed on review absent manifest error. Titone, 151 Ill. 2d at 24.\nDefendant first argues that the trial court erred in dismissing his petition for post-conviction relief because the incompetent performances of his trial and post-trial counsel resulted in a breakdown of the meaningful adversarial testing required by the Federal and State Constitutions.\nDefendant\u2019s claim of ineffective assistance of counsel is suggested by the record. Trial counsel, although a seasoned civil lawyer, appeared to lack criminal experience. However, post-trial counsel raised this very issue by motion for new trial and on appeal and, as we do not sit as a reviewing court for that appeal, this issue is res judicata since the appellate court found the totality of defense counsel\u2019s representation to be competent. See Patrasso I, slip op. at 3-5; see also Titone, 151 Ill. 2d at 35 (exact argument considered and rejected on direct appeal is res judicata on appeal of trial court\u2019s denial of defendant\u2019s post-conviction petition).\nMoreover, the record supports the trial court\u2019s finding that defendant received effective assistance at the post-trial stage. To prevail on a claim of ineffective assistance of counsel, defendant must establish that his counsel\u2019s representation fell below an objective standard of reasonableness and that, as a result of the proceeding, defendant suffered prejudice. (People v. Johnson (1993), 154 Ill. 2d 227, 233-34, 609 N.E.2d 304, citing Strickland, 466 U.S. at 687-89, 80 L. Ed. 2d at 693-94, 104 S. Ct. at 2064-65.) When reviewing a claim of ineffective assistance of counsel, the court will examine the totality of counsel\u2019s conduct in light of the strong presumption that counsel\u2019s performance fell within \" 'the wide range of reasonable professional assistance.\u2019 \u201d People v. Flores (1989), 128 Ill. 2d 66, 81, 538 N.E.2d 481, quoting Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.\nDefendant contends that his post-trial counsel did not afford him effective representation because counsel failed to confer with him about the substantive facts of the case and because counsel waived his right to be present at the hearing on the motion for new trial. We disagree. The record shows that post-trial counsel conferred with defendant about the main issue presented at the hearing on the motion for new trial, which concerned the competency of defendant\u2019s trial attorney, and at the hearing presented a persuasive argument to support a reversal, including testimony from two witnesses, one of whom was defendant\u2019s trial attorney. Moreover, counsel raised the issue of defendant\u2019s alleged intoxication to argue defendant\u2019s inability to form the specific intent to commit the crimes for which he was charged.\nDefendant\u2019s argument that he would have given post-trial counsel information supporting a self-defense defense or information demonstrating the incompetence of trial counsel fails to establish that he suffered \"actual prejudice\u201d at counsel\u2019s hands. To show actual prejudice, defendant must establish a reasonable probability that \" 'but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u2019 \u201d (Johnson, 154 Ill. 2d at 234, quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) Defendant may not rely on \"mere conjecture or speculate as to the outcome of the case had the representation been of a higher quality.\u201d People v. Puente (1984), 125 Ill. App. 3d 152, 158, 465 N.E.2d 682, citing People v. Hills (1980), 78 Ill. 2d 500, 505-06, 401 N.E.2d 523; see People v. Berland (1978), 74 Ill. 2d 286, 311, 385 N.E.2d 649 (\"effective assistance\u201d means competent, not perfect, representation).\nWhile the affidavits filed in the instant matter reveal the venality of the victims, with apparent connections to organized crime, they do not support a defense predicated upon the need for self-defense or a lack of specific intent. Instead, the affidavits, which portray defendant as a drug-abusing bouncer for a place of prostitution frequented by dealers of narcotics and weapons, provide this court with a possible explanation for counsel\u2019s hesitation to argue in mitigation.\nSimilarly, defendant has failed to show how his presence at the hearing on the new trial motion would have changed the result of the proceeding, especially in light of the fact that defendant had no ascertainable right to be present at the hearing. A defendant\u2019s constitutional right to be present at trial does not \"embrace a right to be present also at the argument of motions prior to trial or subsequent to verdict.\u201d People v. Woods (1963), 27 Ill. 2d 393, 395, 189 N.E.2d 293; see People v. Burke (1992), 226 Ill. App. 3d 798, 804, 589 N.E.2d 966, citing People v. Hummel (1977), 48 Ill. App. 3d 1002, 1008, 365 N.E.2d 122.\nOn this issue, defendant\u2019s failure to establish that the alleged errors of counsel prejudiced his success on the motion for new trial precludes a finding of manifest error.\nDefendant also contends that the \"brutal or heinous\u201d provision of the Illinois extended-term statute (Ill. Rev. Stat. 1983, ch. 38, par. 1005 \u2014 5\u20143.2(b)(2)) violates the due process and cruel and unusual punishment clauses of the Federal and State Constitutions because it is vague and ambiguous and \"leaves sentencing to the unfettered discretion of the sentencer.\u201d The statute at issue permits the trial court to sentence a convicted felon to an extended term if the court finds that the offense was accompanied by \"exceptionally brutal or heinous behavior indicative of wanton cruelty.\u201d (Ill. Rev. Stat. 1983, ch. 38, par. 1005 \u2014 5\u20143.2(b)(2).) Illinois courts have repeatedly upheld the statute at issue against identical or similar constitutional attacks. See People v. Hartzol (1991), 222 Ill. App. 3d 631, 655, 584 N.E.2d 291, citing People v. Hernandez (1990), 204 Ill. App. 3d 732, 743-44, 562 N.E.2d 219; People v. Bryant (1990), 202 Ill. App. 3d 290, 308-09, 599 N.E.2d 930; People v. Page (1990), 193 Ill. App. 3d 467, 471-72, 550 N.E.2d 248; People v. Brown (1990), 195 Ill.App. 3d 78, 551 N.E.2d 1100; People v. Barnhill (1989), 188 Ill. App. 3d 299, 543 N.E.2d 1374; People v. Whitlock (1988), 174 Ill. App. 3d 749, 782, 528 N.E.2d 1371; People v. Cartalino (1982), 111 Ill. App. 3d 578, 590-92, 444 N.E.2d 662.\nMoreover, Illinois courts have specifically rejected the argument which defendant presents in reliance on Maynard v. Cartwright (1988), 486 U.S. 356, 363-64, 100 L. Ed. 2d 372, 382, 108 S. Ct. 1853, 1859 (Oklahoma statute directing a jury to consider capital sentencing for crimes \"especially heinous, atrocious, or cruel\u201d held unconstitutionally vague for lack of sentencing guidelines); now, the eighth amendment analysis presented in Maynard \"applies only in death penalty cases and does not apply to an extended term of imprisonment.\u201d (Hernandez, 204 Ill. App. 3d at 744, citing Brown, 195 Ill. App. 3d at 89; see Barnhill, 188 Ill. App. 3d 299.) Hence, the trial court did not commit manifest error by sentencing defendant for an extended term proportionate to the violent nature of the crime he committed.\nFinally, defendant claims that the trial court erred in imposing an extended-term sentence without notifying him of its intention to do so. This claim is also res judicata since defendant raised and the court addressed this issue on direct appeal:\n\"The statute does not require that defendant be given any notice prior to the imposition of an extended term sentence, and we find that the trial court, in advising defendant and his counsel at the hearing in aggravation and mitigation of his intention to impose such a sentence, gave sufficient notice to defendant.\u201d (Patrasso I, slip op. at 4-5, citing People v. Grier (1980), 90 Ill. App. 3d 840, 413 N.E.2d 1316.)\nBecause defendant committed a brutal and heinous crime within the meaning of the Illinois extended-term statute, \"avoiding murder only because the gun did not fire\u201d (see Patrasso /, slip op. at 5), the trial court did not commit manifest error in sentencing.\nFor the foregoing reasons, we affirm defendant\u2019s conviction and sentence.\nAffirmed.\nTULLY, P.J., and CERDA, J., concur.\nAlthough that appellate court determined defense counsel\u2019s competency at trial without citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, the Supreme Court announced this landmark decision five months prior to Patrasso I.\nWe note that defendant in his appellate brief only challenges his counsel\u2019s competency on the new trial motion without reference to the direct appeal. However, since courts will consider a sixth amendment challenge in light of the totality of counsel\u2019s performance, we examine defense counsel\u2019s performance throughout the post-trial stage.", "type": "majority", "author": "JUSTICE GREIMAN" } ], "attorneys": [ "Edward M. Genson and Marc W. Martin, both of Genson, Steinback, Gillespie & Martin, of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Scott V. Bruner, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES PATRASSO, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201492\u20143182\nOpinion filed February 23, 1994.\nRehearing denied May 3, 1995.\nEdward M. Genson and Marc W. Martin, both of Genson, Steinback, Gillespie & Martin, of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Scott V. Bruner, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "1087-01", "first_page_order": 1107, "last_page_order": 1113 }