{ "id": 4274862, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROMARIS WALTON, Defendant-Appellant", "name_abbreviation": "People v. Walton", "decision_date": "2007-10-17", "docket_number": "No. 1\u201406\u20141276", "first_page": "580", "last_page": "590", "citations": [ { "type": "official", "cite": "378 Ill. App. 3d 580" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "361 Ill. App. 3d 136", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4260188 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "155-56" }, { "page": "155-56" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/361/0136-01" ] }, { "cite": "142 Ill. 2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236794 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "377" }, { "page": "378" }, { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0353-01" ] }, { "cite": "331 Ill. App. 3d 312", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209133 ], "year": 2002, "pin_cites": [ { "page": "321-22" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/0312-01" ] }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "year": 1977, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0551-01" ] }, { "cite": "276 Ill. App. 3d 130", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 927627 ], "year": 1995, "pin_cites": [ { "page": "132-33", "parenthetical": "prejudice will be presumed when court-appointed appellate counsel fails to file a notice of appeal and deprives the defendant of his fundamental right to a direct appeal" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/276/0130-01" ] }, { "cite": "354 Ill. App. 3d 283", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3215208 ], "year": 2004, "pin_cites": [ { "page": "290", "parenthetical": "\"Counsel's choice [of defense theory] does not constitute ineffective assistance of counsel simply because it was unsuccessful\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/354/0283-01" ] }, { "cite": "349 Ill. App. 3d 391", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5433250 ], "year": 2004, "pin_cites": [ { "page": "399-402" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/349/0391-01" ] }, { "cite": "331 Ill. App. 3d 380", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209189 ], "year": 2002, "pin_cites": [ { "page": "392-93" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/0380-01" ] }, { "cite": "104 Ill. 2d 218", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3146600 ], "year": 1984, "pin_cites": [ { "page": "231-32" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0218-01" ] }, { "cite": "375 Ill. App. 3d 966", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4272229 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/ill-app-3d/375/0966-01" ] }, { "cite": "152 Ill. 2d 41", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5602986 ], "year": 1992, "pin_cites": [ { "page": "53-56" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0041-01" ] }, { "cite": "162 Ill. 2d 465", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477534 ], "year": 1994, "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0465-01" ] }, { "cite": "286 Ill. App. 3d 825", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1544483 ], "year": 1997, "pin_cites": [ { "page": "829-30", "parenthetical": "upholding the trial court's sua sponte finding that the defendant was guilty of the uncharged lesser mitigated offense of second degree murder even though defendant, at trial, denied any involvement in the shooting" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/286/0825-01" ] }, { "cite": "164 Ill. 2d 104", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477012 ], "year": 1995, "pin_cites": [ { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/164/0104-01" ] }, { "cite": "337 Ill. App. 3d 80", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 894561 ], "year": 2003, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/337/0080-01" ] }, { "cite": "196 Ill. 2d 460", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351279 ], "year": 2001, "pin_cites": [ { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0460-01" ] }, { "cite": "358 Ill. App. 3d 683", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5730849 ], "year": 2005, "pin_cites": [ { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/358/0683-01" ] }, { "cite": "349 Ill. App. 3d 721", "category": "reporters:state", "reporter": "Ill. 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ROMARIS WALTON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GREIMAN\ndelivered the opinion of the court:\nFollowing a bench trial, defendant Romaris Walton was convicted of two counts of first degree murder and sentenced to 32 years\u2019 imprisonment. On appeal, defendant asserts that (1) he was denied effective assistance of counsel and due process of law when trial counsel usurped his right to decide whether to seek a conviction on the lesser mitigated offense of second degree murder, and instead proceeded with an all-or-nothing defense; and (2) his second conviction for first degree murder must be vacated because it violates the one-act, one-crime doctrine. We affirm as modified.\nDefendant was charged with intentional murder (720 ILCS 5/9\u2014 1(a)(1) (West 2002)) and knowing murder (720 ILCS 5/9 \u2014 1(a)(2) (West 2002)) in connection with the stabbing death of Kenneth Taylor on July 9, 2003. Defendant waived his right to a jury trial and elected a bench trial, where he advanced the theory of self-defense.\nThe following evidence was adduced at defendant\u2019s bench trial. Johnnie Brown testified that on July 7, 2003, she met defendant, who introduced himself as \u201cWilliam,\u201d and learned that he needed a place to stay. At the time, she was living with Taylor, her common law husband, in a two-bedroom apartment located at 14516 Muskegon in Burnham, Illinois. Brown and Taylor agreed to permit defendant to stay with them, and defendant moved in that day.\nOn July 9, 2003, defendant returned to Brown and Taylor\u2019s apartment from a nearby construction site. Brown let him in and then joined Taylor in their bedroom. She went to check on defendant shortly thereafter and discovered that he was smoking crack cocaine in the living room. Brown had seen defendant use drugs in her apartment before and asked him not to bring drugs into her apartment. This time, Brown ordered defendant to leave the apartment and he complied.\nShortly thereafter, Brown left the apartment to go to the store. Taylor remained in the apartment. When Brown returned to the apartment later that evening, she found that all of the lights were turned off and a sheet was covering the window. There were also bloodstains on the walls and floors throughout the apartment. She looked for Taylor and ultimately found him lying motionless on the floor in the bedroom. Because she did not have a phone in her apartment, Brown ran to a neighbor\u2019s apartment to call the police.\nBrown acknowledged that during her 12-year relationship with Taylor, he had physically abused her on a number of occasions. She called the police at least four times, and the police filed charges against Taylor. Each time, however, the charges were dropped. On no occasion had Taylor ever \u201cpulled a knife\u201d on her.\nDoctor Scott Denton, a forensic pathologist and the deputy chief medical examiner at the Cook County medical examiner\u2019s office, performed an autopsy on Taylor and discovered approximately 90 stab wounds on his body. The majority of the wounds were superficial; however, \u201csome of them were pretty deep.\u201d There were multiple wounds to Taylor\u2019s head, neck, and upper back, which were consistent with someone stabbing Taylor from above. In addition, some of the wounds were inflicted horizontally, while others were inflicted vertically, indicating movement between the victim and the assailant. Den-ton classified Taylor\u2019s death as a homicide. In addition, Denton testified that a toxicology report revealed that Taylor\u2019s blood contained carbon monoxide, which is common in smokers, as well as a cocaine breakdown product.\nSergeant John Daley was on patrol duty on July 9, 2003. He received a call shortly after 7:30 p.m. and was directed to 14516 Mus-kegon, apartment 2-C. Upon entering the apartment, he found Johnnie Brown, sitting in a chair, screaming and crying. He also found blood \u201ceverywhere,\u201d including the floor, walls, carpet, and blinds. Sergeant Daley also discovered Taylor\u2019s body on the bedroom floor. He approached the body and found \u201cabsolutely no signs of life.\u201d\nAfter securing the scene, Sergeant Daley, along with another officer, walked outside the residence. In the rear of the property, they recovered a bag containing bloody clothing and shoes from the Dumpster. The parties stipulated that the blood on the shoe was compared to a blood sample taken from Taylor and was found to be \u201cconsistent with [Taylor\u2019s] DNA profile.\u201d\nSergeant Kevin Urbanek was assigned to the tactical division on July 9, 2003. At approximately 7:36 p.m., he was directed to pick up a carjacking victim from St. Margaret\u2019s Hospital. He met with defendant and interviewed him at the police department. Defendant identified himself as \u201cKingsley Lemon\u201d and informed Sergeant Urbanek that he had been approached by two males who \u201cpulled a weapon on him\u201d because defendant owed one of the men money. The assailants ordered defendant to take off his clothes and defendant complied. The two men then drove off in his vehicle and defendant ran away until he collapsed on the lawn of a residence located at 1075 Breclaw Drive. Following defendant\u2019s narrative, Sergeant Urbanek wrote a report concerning the incident, and defendant signed the report, verifying its authenticity.\nOn July 9, 2003, Detective Paul Hurckes was assigned to investigate Taylor\u2019s homicide. In connection with the assignment, he interviewed defendant at approximately 11:15 p.m. Defendant did not identify himself as Romaris Walton, but provided a different name. Defendant initially informed Detective Hurckes that he had been carjacked, but later confessed he had been involved in the stabbing death of Taylor. Detective Hurckes informed defendant of his rights and defendant signed a preprinted form indicating he understood his rights. Defendant subsequently informed Detective Hurckes that his real name was Romaris Walton.\nDetective Hurckes interviewed defendant again the following day at approximately 11:06 a.m. Following the interview, Detective Hurckes took defendant to the 2700 block of Goodrich to recover the knife defendant used in the stabbing. He found the knife in the place indicated by defendant. The parties stipulated that the knife contained a bloodstain, which was compared to a blood sample taken from Taylor. The bloodstain on the knife was found to be \u201cconsistent\u201d with Taylor\u2019s DNA profile.\nOn July 11, 2003, Assistant State\u2019s Attorney (ASA) Tim Felgen-hauer, a member of the felony review team, met with Detective Hurckes, who informed him about the stabbing. He interviewed Brown and then went to speak with defendant. ASA Felgenhauer introduced himself and informed defendant of his Miranda rights from a pre-printed form. Defendant acknowledged his rights, provided his initials beside each right, signed the form, and agreed to discuss his role in Taylor\u2019s death. After concluding the interview, ASA Felgenhauer asked defendant if he would be willing to memorialize his statement on videotape. Defendant agreed and signed a \u201cConsent to Videotape Statement\u201d form.\nIn his videotaped confession, defendant stated that on July 9, 2003, he was living with Johnnie Brown, whom he called \u201cJ,\u201d and Kenneth Taylor, who he referred to as \u201cKenny,\u201d in their apartment located at 14516 Muskegan. At approximately 6:30 p.m., he and Kenny engaged in a dispute about rent money. Defendant attempted to leave the apartment at approximately 7 p.m., but Kenny stood in front of the apartment\u2019s front door, blocking the exit, while holding a knife in his right hand. Defendant approached Kenny and grabbed his wrist, causing the knife to fall to the ground. Defendant and Kenny both fell to the ground to retrieve the knife. Defendant recovered the knife with his right hand and both men stood up. Defendant held the knife out in front of him with the blade facing outward. Kenny attempted to grab the knife and defendant \u201cpoked him,\u201d stabbing Kenny in his neck. Defendant stepped back, but Kenny \u201ccharged towards\u201d him. Defendant \u201cpoked\u201d Kenny again, stabbing him \u201c[a] few times\u201d in his neck and chest. The two then began to \u201ctussle,\u201d and Kenny again attempted to take the knife. Defendant stabbed one of Kenny\u2019s hands and then stabbed him \u201charder\u201d on the side of his neck. Kenny then broke free and ran toward the glass patio doors and tried to run through the glass doors, causing the sheet covering the doors and the blinds to fall to the ground. Defendant did not want Kenny to \u201cthrow hisself [sic] out the *** glass doors,\u201d so he grabbed Kenny by the shirt and put him against a wall. Defendant was in a \u201cfrozen state\u201d because he was \u201cshocked at what had took [sic] place.\u201d He retrieved the sheet that had fallen to the floor and hung the sheet back over the doors. As he was doing so, he heard a noise, glanced over and saw Kenny moving toward the kitchen where defendant had left the knife.\nDefendant beat Kenny to the knife, grabbed it with his right hand, and pointed the blade toward the ground. Kenny fell to his knees and \u201clatched his arms around [defendant\u2019s] waist real tightly.\u201d Defendant attempted to loosen Kenny\u2019s grip but was unable to firmly grasp him because Kenny was covered in blood. Defendant was also losing his footing, slipping on the blood that covered the floor, \u201cso in a paranoid reaction, [he] started sticking him again\u201d in an attempt to get Kenny off of him. Defendant stabbed Kenny \u201cover a dozen\u201d times in his back, shoulder, and the side of his neck. Ultimately Kenny fell over and defendant \u201cstood motionless for a minute\u201d to determine \u201cwhat was gonna be [his] next move.\u201d He then noticed Kenny crawling toward the bedroom. Defendant thought Kenny may have been trying to get a gun or a weapon from the bedroom so he walked ahead of Kenny to the room, but did not see a weapon. When he turned around, he saw Kenny collapse in the hallway. Defendant knew Kenny was no longer a threat and started \u201cmaking plans to leave.\u201d Defendant removed his clothes and put them in a garbage bag. He washed the blood off of his face and hands and changed into some new clothes. He covered the floor in the front room with a sheet because it was covered in blood and was a \u201cgruesome sight.\u201d He did not want J \u201cto see that and panic.\u201d Defendant also dragged Kenny\u2019s body to the bedroom to remove him from \u201cthe line of sight for anybody that did come through the door so they wouldn\u2019t panic.\u201d\nDefendant subsequently left the apartment, deposited the bag containing the bloody clothes in a Dumpster, and threw the knife in some weeds. He then sat down to \u201ccollect [his] thoughts,\u201d and noticed that there was some blood on his pants. That gave him an \u201cuncomfortable feeling\u201d so he removed his pants and underwear, wrapped them in a towel and left them on the ground. He walked down an alley and saw a young man. He \u201cmade up a story that [he] got caijacked and some guys had jumped [him]\u201d and asked the man to call the police. Defendant walked to the corner of the block, sat down, and noticed his shoes also had blood on them. He removed them and \u201cthrowed [sic] them in a yard.\u201d After 5 or 10 minutes, the police had not arrived so defendant approached another group of people, \u201ctold them the same story that [he] had been carjacked\u201d and asked them to call the police. The police arrived shortly thereafter and defendant provided them with a false name because he knew there was a warrant out for his arrest under his real name, and informed them he had been carjacked. Defendant was examined at the hospital and was then taken to the police station where he initially provided the police with details about the fake carjacking. However, he began to feel \u201cat ease\u201d and began to tell the truth about his involvement in Kenny\u2019s death. Defendant directed the police to the Dumpster that contained his bloody clothes and to the knife.\nAt the conclusion of the State\u2019s case, the defense moved for an acquittal. Counsel argued that \u201cthis is a case of self-defense.\u201d He argued defendant never had an intent to kill Taylor. He never stabbed Taylor in any of his vital organs and most of the stab wounds were in fact superficial. Defendant\u2019s statement showed he repeatedly backed away from Taylor, but Taylor advanced toward him. Accordingly, defendant clearly \u201cacted in self-defense.\u201d The trial court denied defendant\u2019s motion and both parties proceeded with closing arguments.\nDefense counsel adopted his argument from his motion for an acquittal. He reiterated that the physical evidence as well as defendant\u2019s statement showed he acted in self-defense when he stabbed Taylor, a man who had a history of violence. Finally counsel advised the court that \u201cif we were in front of a jury, we would not be going all or nothing, Judge. Most decidedly we would ask for a second degree instruction if we were in front of a jury.\u201d However, because the evidence showed defendant acted reasonably, counsel asked for a finding of not guilty.\nFollowing closing arguments, the court discussed the relevant facts and concluded that \u201c[t]he defendant\u2019s story makes no sense whatsoever.\u201d Based on defendant\u2019s actions and his confession, the court found that \u201c[a]ll these things are not self-defense. All of these things are not second degree murder. All of these things are first degree murder, and I so find.\u201d The trial court found defendant guilty of two counts of first degree murder and sentenced him to 32 years\u2019 imprisonment. Defendant\u2019s timely appeal followed.\nOn appeal, defendant first asserts that he was denied his constitutional right to effective assistance of counsel when his trial counsel opted to pursue an all-or-nothing trial strategy and asked the trial court not to consider the lesser mitigated offense of second degree murder, thus usurping his right to decide whether to seek a conviction on this lesser offense. In a related claim, defendant also asserts that the trial court denied defendant his due process rights when it failed to inquire whether he knowingly and intelligently decided to forgo a second degree murder conviction. The State, on the other hand, asserts that defendant\u2019s claim is contradicted by the record and that his argument is flawed because he relies on a body of case law developed specifically for jury trials, which has no applicability to bench trials.\nInitially, we address the State\u2019s argument that the record contradicts defendant\u2019s claim that counsel requested the court not to consider the lesser mitigated offense of second degree murder and that his request demonstrated that he alone made the decision to advance an all-or-nothing defense at trial. At trial, during closing arguments, defense counsel advised the court:\n\u201cJudge, if we were in front of a jury, we would not be going all or nothing, Judge. Most decidedly we would ask for a second degree instruction if we were in front of a jury, Judge. But I feel that the evidence here, Judge, shows that he did act reasonably, this was self-defense. We are asking you to find him not guilty, Judge.\nI know you know what your options are at this point in terms of a finding. We are asking for [a] finding of not guilty. We truly feel when looked upon, the evidence shows that this was reasonable and we\u2019re asking you to find Romans not guilty.\u201d\nWhile we agree with defendant that counsel clearly expressed an intention to advance an all-or-nothing strategy at defendant\u2019s bench trial, we disagree that counsel\u2019s soliloquy \u201cdemonstrates that trial counsel\u2014 and not [defendant] \u2014 made the decision to proceed on an all-or-nothing theory instead of offering the trial court the option of convicting [defendant] on the lesser mitigated offense as a matter of trial strategy\u201d as defendant claims. Though counsel indicates at one point that he alone (\u201cI\u201d) felt the evidence showed defendant acted reasonably in self-defense, he later stated: \u201cWe truly feel when looked upon, the evidence shows that this was reasonable and we\u2019re asking you to find Romaris not guilty.\u201d Accordingly, counsel\u2019s statement can justifiably be interpreted as an indication that counsel and defendant collectively agreed on the all-or-nothing defense strategy. However, assuming, arguendo, that counsel\u2019s statement could be interpreted in the manner urged by defendant on appeal, we nonetheless find that defendant was not denied effective assistance of counsel or due process.\nA criminal defendant has a constitutional right to receive effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, \u00a78. To establish a violation of his constitutional right to effective assistance of counsel, a defendant must show that (1) counsel\u2019s performance was objectively unreasonable and (2) resulted in prejudice to defendant. Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068 (1984); People v. Albanese, 104 Ill. 2d 504, 525-26 (1984). It is incumbent upon a defendant to satisfy both prongs of the Strickland test. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; People v. Patterson, 217 Ill. 2d 407, 438 (2005). To satisfy the first prong, the defendant must overcome the \u201cstrong presumption\u201d that counsel\u2019s performance was a matter of sound trial strategy. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065; People v. Perry, 224 Ill. 2d 312, 341-42 (2007). To satisfy the prejudice prong, the defendant must prove that a reasonable probability exists that, but for counsel\u2019s unreasonable performance, the trial result would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; People v. Johnson, 218 Ill. 2d 125, 143-44 (2005).\nOur supreme court has recognized that a criminal defendant who elects a jury trial has the right to decide whether to tender a lesser-included-offense jury instruction. People v. Brocksmith, 162 Ill. 2d 224, 229-30 (1994); People v. Medina, 221 Ill. 2d 394, 404-05 (2006). The rationale for this rule is that the defendant tendering a lesser-included offense \u201cexpos[es] himself to potential criminal liability, which he otherwise might avoid if neither the trial judge nor the prosecutor seeks the pertinent instruction.\u201d Medina, 221 Ill. 2d at 405. Accordingly, when defense counsel tenders a lesser-included-offense jury instruction, the trial court \u201cshould conduct an inquiry of defense counsel, in defendant\u2019s presence, to determine whether counsel has advised defendant of the potential penalties associated with the lesser-included offense, and the court should thereafter ask defendant whether he agrees with the tender.\u201d Medina, 221 Ill. 2d at 409. No such inquiry is required if no lesser-included instruction is tendered, however, because \u201cit may be assumed that the decision not to tender was defendant\u2019s, after due consultation with counsel.\u201d Medina, 221 Ill. 2d at 410. Relying on Medina and Brocksmith, defendant asserts that it necessarily follows that in a bench trial, a criminal defendant, charged with murder, has the exclusive right to decide whether to seek conviction on the lesser mitigated offense of second degree murder, and that when counsel advances an all-or-nothing defense, the trial court must inquire whether defendant agrees with that defense. We disagree.\nDefendant\u2019s position ignores an important distinction between jury trials and bench trials as well as the rationale for the aforementioned rule. In a jury trial, unless a lesser-included-offense instruction is tendered, the jury does not have the option to convict the defendant of an uncharged lesser-included offense; rather, the jury will be forced to decide either to convict or acquit him. This avoids the possibility of a compromise verdict where the \u201cjury may be induced to find defendant guilty of the lesser offense rather than to continue the debate as to his innocence.\u201d People v. Benford, 349 Ill. App. 3d 721, 728 (2004). In contrast, a judge presiding over a bench trial may convict a criminal defendant of an uncharged lesser-included offense sua sponte. People v. Moore, 358 Ill. App. 3d 683, 690 (2005), citing People v. Knaff, 196 Ill. 2d 460, 473 (2001).\nAccordingly, we have recognized that the rule established in Brock-smith has \u201climited application\u201d because \u201c[i]n a bench trial, a judge determines from the evidence whether the defendant is guilty of murder or of some lesser-included offense.\u201d People v. Turner, 337 Ill. App. 3d 80, 90 (2003). Though defendant correctly notes that second degree murder is properly characterized as a lesser mitigated offense rather than a lesser-included offense (People v. Jeffries, 164 Ill. 2d 104, 122 (1995)), we have found that the trial court may also convict a defendant of second degree murder sua sponte. See People v. Rogers, 286 Ill. App. 3d 825, 829-30 (1997) (upholding the trial court\u2019s sua sponte finding that the defendant was guilty of the uncharged lesser mitigated offense of second degree murder even though defendant, at trial, denied any involvement in the shooting). Accordingly, the rationale for the Brocksmith rule and the inquiry procedure developed by Medina do not have the same applicability in a bench trial. Thus, we do not find that counsel usurped one of defendant\u2019s fundamental rights, thereby rendering ineffective assistance, or that the trial court violated his due process rights by failing to inquire into his trial strategy.\nInstead, we find that defendant\u2019s appeal essentially challenges his counsel\u2019s trial strategy. Counsel\u2019s trial strategy, however, is \u201cvirtually unchallengeable\u201d and will generally not support an ineffective assistance of counsel claim. People v. Palmer, 162 Ill. 2d 465, 476 (1994); see also People v. Ramey, 152 Ill. 2d 41, 53-56 (1992); People v. Bobo, 375 Ill. App. 3d 966 (2007). Counsel\u2019s decision to advance an \u201call-or-nothing defense\u201d has been recognized as a valid trial strategy {People v. Barnard, 104 Ill. 2d 218, 231-32 (1984); Benford, 349 Ill. App. 3d at 728-29; People v. Daniels, 331 Ill. App. 3d 380, 392-93 (2002)) and is generally not unreasonable unless that strategy is based upon counsel\u2019s misapprehension of the law. See, e.g., People v. Lemke, 349 Ill. App. 3d 391, 399-402 (2004). In this case, counsel adopted a valid trial strategy when he argued that defendant was acting in self-defense. The mere fact that this strategy proved unsuccessful does not mean counsel performed unreasonably and rendered ineffective assistance. People v. Milton, 354 Ill. App. 3d 283, 290 (2004) (\u201cCounsel\u2019s choice [of defense theory] does not constitute ineffective assistance of counsel simply because it was unsuccessful\u201d).\nWe turn next to the prejudice prong. We note initially that defendant asserts that he need not meet the prejudice prong because prejudice may be presumed in his case. Defendant bases his argument on his belief that criminal defendants have a fundamental right in a bench trial to decide whether to permit the trial court to consider the possibility of convicting them of a lesser mitigated offense. He cites several cases which have recognized that in certain, limited circumstances, prejudice will be presumed when counsel interferes with the defendant\u2019s exercise of a fundamental right. See, e.g., People v. Swanson, 276 Ill. App. 3d 130, 132-33 (1995) (prejudice will be presumed when court-appointed appellate counsel fails to file a notice of appeal and deprives the defendant of his fundamental right to a direct appeal). However, because we have decided that defendant\u2019s claim does not involve a violation of a fundamental right but, rather, is an attack on counsel\u2019s trial strategy, we will not indulge in a presumption of prejudice.\nIn this case, we conclude that defendant suffered no prejudice. It is clear from the record that the trial court did, in fact, consider second degree murder, when it stated: \u201cAll of these things are not self-defense. All of these things are not second degree murder. All of these things are first degree murder, and I so find.\u201d (Emphasis added.) Thus, there is no reasonable probability that, had counsel argued in favor of a second degree murder conviction, the trial result would have differed. Accordingly, because counsel did not act unreasonably and defendant suffered no prejudice, his ineffective assistance of counsel claim has no merit.\nNext, defendant asserts, and the State concedes, that the trial court erroneously sentenced him to two counts of first degree murder in violation of the one-act, one-crime doctrine. Defendant maintains that we should vacate his murder conviction under count II because it contains the less culpable mental state.\nThe law is clear that in criminal cases, the one-act, one-crime doctrine prohibits the imposition of multiple convictions based upon a single act and provides that only a conviction for the most serious offense may be sustained. See People v. King, 66 Ill. 2d 551, 566 (1977); People v. Pearson, 331 Ill. App. 3d 312, 321-22 (2002). As a rule, \u201c[a] defendant cannot be convicted of more than one murder arising out of the same physical act.\u201d People v. Pitsonbarger, 142 Ill. 2d 353, 377 (1990).\nIn this case, defendant was charged with, and convicted of, intentional murder (720 ILCS 5/9 \u2014 1(a)(1) (West 2002)) (count I) and knowing murder (720 ILCS 5/9 \u2014 1(a)(2) (West 2002)) (count II). Because there was only one person murdered, his dual convictions cannot stand. Pitsonbarger, 142 Ill. 2d at 378; People v. Foreman, 361 Ill. App. 3d 136, 155-56 (2005). Accordingly, because intentional murder involves a more culpable mental state, we vacate his conviction for knowing murder, the less serious offense. Pitsonbarger, 142 Ill. 2d at 378; Foreman, 361 Ill. App. 3d at 155-56.\nAffirmed as modified.\nQUINN, P.J., and THEIS, J., concur.", "type": "majority", "author": "JUSTICE GREIMAN" } ], "attorneys": [ "Michael J. Pelletier and Jennifer L. Bontrager, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Annette Collins, and Maureen McGee, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROMARIS WALTON, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201406\u20141276\nOpinion filed October 17, 2007.\nRehearing denied February 14, 2008.\nMichael J. Pelletier and Jennifer L. Bontrager, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Annette Collins, and Maureen McGee, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0580-01", "first_page_order": 596, "last_page_order": 606 }