People v. Hernandez

Illinois Official Reports

Appellate Court

People v. Hernandez, 2014 IL App (2d) 131082

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption ELVER HERNANDEZ, Defendant-Appellant.

District & No. Second District

Docket No. 2-13-1082

Filed October 20, 2014

Held Following defendant’s conviction for first-degree murder at a

(Note: This syllabus stipulated bench trial arising from an incident in which defendant and

constitutes no part of the his brother made a Molotov cocktail and defendant’s brother

opinion of the court but “cocktailed” the house where the intended victim lived, the trial court

has been prepared by the properly dismissed defendant’s pro se postconviction petition as

Reporter of Decisions frivolous and patently without merit, despite his allegations that the

for the convenience of trial court never mentioned the imposition of a period of mandatory

the reader.) supervised release, that his trial counsel never advised him of the

State’s actual plea offer, misrepresented why defendant should

proceed with a stipulated bench trial, and did not investigate the

defendant’s affirmative defenses or advise him of his right to testify,

and that his appellate counsel failed to raise those issues in defendant’s

direct appeal, since his allegations were all directly contradicted by the

record and he could not establish prejudice.

Decision Under Appeal from the Circuit Court of Lake County, No. 09-CF-1875; the

Review Hon. Daniel B. Shanes, Judge, presiding.

Judgment Affirmed.

Counsel on Isuf Kola, of Law Offices of Isuf Kola & Associates, Ltd., of Glen

Appeal Ellyn, for appellant.

Michael G. Nerheim, State’s Attorney, of Waukegan (Lawrence M.

Bauer and Aline Dias, both of State’s Attorneys Appellate

Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE JORGENSEN delivered the judgment of the court, with

opinion.

Justices Schostok and Birkett concurred in the judgment and opinion.

OPINION

¶1 Following a stipulated bench trial, defendant was convicted of first-degree murder after

he and his brother, Edwin Hernandez, set fire to a home, killing a 12-year-old boy and

seriously injuring the boy’s family members (including the boy’s mother, who was

apparently paralyzed after she jumped from a second-story window to escape the fire). The

crime was gang-related, and the intended target of the crime was not home.

¶2 During the investigation, defendant, in a videotaped statement, confessed to the crime.

The court denied his motion to suppress the confession. Because the denial of his motion to

suppress could not be appealed if he entered a guilty plea, defendant proceeded with a

stipulated bench trial to preserve his appellate rights regarding the confession’s

admissibility. 1 After finding defendant guilty and denying defendant’s posttrial motion

(which attacked the suppression ruling), the court sentenced defendant to 84 years’

imprisonment, followed by 3 years of mandatory supervised release (MSR). Defendant

appealed, arguing that the confession should have been suppressed (and challenging his

eligibility for extended-term sentencing and a public defender fee), and this court affirmed

the denial of the motion to suppress. People v. Hernandez, 2012 IL App (2d) 110817-U, ¶ 14.

1

As will become relevant below, we note that a transcript of the confession is contained in the

record as part of the stipulated evidence at defendant’s bench trial. The transcript reflects defendant

confessing to police that, on the night of the murder (which occurred only five days after defendant was

released from a three-month period in the county jail), he and Edwin, under “order” by other Latin

Kings, made a Molotov cocktail at their house. They walked to the victims’ house, where defendant

smashed van windows with a pipe while Edwin “cocktailed the house”; they saw flames and ran away.

Defendant stated, “it wasn’t meant to be like that.” Defendant knew that the target lived with his family,

including his mother, sister, and brother, whom defendant previously met when he was invited to a

party at the home. Defendant’s account was corroborated by Edwin’s similar confession. We further

note that, at the motion-to-suppress hearing, which took place over several days, defense counsel

conducted lengthy cross-examinations of the investigating officers, provided a detailed closing

argument, and represented that he and defendant strategically chose not to present other evidence or

defendant’s testimony.

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¶3 On June 4, 2013, defendant filed a pro se postconviction petition pursuant to section

122-1 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 (West 2012)), arguing:

(1) that the application of MSR was unconstitutional; and (2) that he was denied effective

assistance of trial and appellate counsel. The petition is signed by defendant and notarized.

One notarized affidavit, from Edwin, is attached to the petition. In his affidavit, Edwin attests

that, on the night of the crime, defendant was asleep and did not leave his house. Further,

Edwin attests that he wanted to testify at defendant’s trial, that he told this to defendant and

defendant informed his attorney, but that defendant told him that his attorney did not respond

to the information and no one contacted Edwin about testifying. Finally, in a handwritten

note included with his petition, defendant writes that he was waiting for an affidavit from

Nidia Hernandez (his sister), but that, due to mail delays, he had not yet received it.2

¶4 On September 19, 2013, in a lengthy written decision, the court denied the postconviction

petition as frivolous and patently without merit. Defendant appeals. Because defendant’s

allegations are directly contradicted by the record and he cannot establish prejudice, we

affirm.

¶5 I. ANALYSIS

¶6 The Act establishes a three-stage process for adjudicating postconviction petitions.

People v. Hommerson, 2013 IL App (2d) 110805, ¶ 7. At the first stage (as here), the trial

court considers, without input from the State, whether the petition is “frivolous or is patently

without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2012). A claim is frivolous or patently

without merit where it is “completely contradicted by the record” or where it has no

“arguable basis either in law or in fact.” People v. Hodges, 234 Ill. 2d 1, 16 (2009). Where

the petition’s allegations are contradicted by the record, the petition should be dismissed.

People v. Torres, 228 Ill. 2d 382, 394 (2008). A dismissal of a postconviction petition at the

first stage is reviewed de novo. People v. Brown, 236 Ill. 2d 175, 184 (2010).

¶7 A. MSR Allegations

¶8 We start by considering defendant’s postconviction claim that his three-year MSR term is

unconstitutional because the court did not mention MSR, the mittimus does not reflect

imposition of MSR, and the MSR period increases his sentence without due process of law.

This claim is directly rebutted by the record and fails as a matter of law.

¶9 First, at his June 17, 2009, arraignment, the court informed defendant at least twice that

the State was seeking an extended-term sentence of 60 to 100 years “followed by three years

of mandatory supervised release or parole.” (Emphasis added.) Defendant stated that he

understood. Further, at sentencing, the court stated that “upon completing the sentence the

court imposes[, defendant] is subjected to a period of mandatory supervised release of three

years.” (Emphasis added.) Second, the August 15, 2011, mittimus specifically reflects both

defendant’s “sentence” (84 years) and “MSR” (3 years). Third, it is well established that the

2

As defendant’s petition is signed and notarized, as most of his claims allege ineffective assistance

of both trial and appellate counsel, and as he alleges ineffectiveness based on matters outside of the

record, we do not find his claims barred by waiver or forfeiture principles or a failure to attach his

attorneys’ affidavits. See, e.g., People v. Mallory, 371 Ill. App. 3d 477, 480-81 (2007); see also People

v. Hall, 217 Ill. 2d 324, 332 (2005).

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prison term and the period of MSR are two parts of the same sentence, not two different

sentences, and, thus, MSR does not constitute the imposition of an additional sentence

without due process. See, e.g., People v. Lee, 2012 IL App (4th) 110403, ¶ 32. Thus, the

court properly dismissed defendant’s postconviction claim challenging MSR.

¶ 10 B. Ineffective-Assistance-of-Trial-Counsel Allegations

¶ 11 Defendant’s petition next alleges that, for six reasons, trial counsel’s performance was

ineffective: (1) counsel failed to communicate to defendant the State’s plea offer; (2) counsel

made affirmative misrepresentations to defendant that rendered defendant’s jury waiver

involuntary; (3) counsel failed to raise any affirmative defenses, in particular an alibi

defense, on defendant’s behalf; (4) counsel failed to make opening and closing arguments in

support of defendant’s case; (5) counsel did not allow defendant to testify at trial; and (6) at

sentencing, counsel failed to present mitigating evidence or confront the State’s incorrect

aggravating evidence. Defendant also claims that the aforementioned alleged errors

cumulatively deprived defendant of effective trial assistance.

¶ 12 At the first stage of postconviction proceedings, an ineffective-assistance-of-counsel

claim may not be dismissed if it is arguable that: (1) counsel’s performance fell below an

objective standard of reasonableness (performance prong); and (2) the defendant was

prejudiced (prejudice prong). Hodges, 234 Ill. 2d at 17 (citing Strickland v. Washington, 466

U.S. 668, 687-88 (1984)). The performance prong requires us to consider whether, applying a

strong presumption that counsel’s representation fell within the wide range of reasonable

assistance (see Strickland, 466 U.S. at 689), there is an arguable basis to find that counsel’s

performance was “objectively unreasonable under prevailing professional norms.” People v.

Cathey, 2012 IL 111746, ¶ 23. The prejudice prong requires us to ask whether there is an

arguable basis to conclude that there exists a reasonable probability that, but for counsel’s

errors, the result of the proceeding would have been different. Id. The failure to satisfy either

prong will defeat the ineffective-assistance claim. People v. Williams, 193 Ill. 2d 306, 375

(2000). We now address and reject each of defendant’s ineffective-assistance claims.

¶ 13 1. Alleged Failure to Communicate Plea

¶ 14 Defendant alleges that defense counsel told him, “off the record,” that the State would

offer no less than 30 years’ imprisonment if defendant would plead guilty and testify against

Edwin. Defendant rejected that offer. However, defendant alleges that counsel did not

communicate to him the State’s actual offer, which would have allowed him to plead guilty

to first-degree murder with a sentencing range of 20 to 60 years, instead of 60 to 100 years

(by amending the charges to remove the sentencing-enhancement factors). That offer,

defendant notes, did not require him to testify against Edwin, nor did it have a minimum

30-year sentence. Accordingly, defendant alleges that, had he known of the offer, he would

have accepted it. Defendant contends that he learned of the State’s offer only after reading

the record of proceedings.

¶ 15 A defendant has the right to decide whether to plead guilty. People v. Trujillo, 2012 IL

App (1st) 103212, ¶ 9. Further, defense counsel has a duty to communicate to the defendant

formal offers from the prosecution, and a failure to do so may present an arguable claim of

deficient performance. Id. ¶¶ 9-10. In Trujillo, the defendant alleged in his postconviction

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petition that his trial counsel never told him that the State had extended a plea offer. The

court held that the defendant’s ineffective-assistance claim had been erroneously dismissed at

the first stage. However, before doing so, it also determined that “the record fails to show that

the trial court admonished the defendant about a guilty plea offer *** and therefore does not

positively rebut the defendant’s allegation that he did not know of the offer.” Id. ¶ 13.

Therefore, even where a defendant alleges that counsel did not properly communicate an

offer, if the record rebuts the allegation that a defendant did not know of the offer, summary

dismissal of the petition may remain proper.

¶ 16 Here, the record positively rebuts defendant’s assertions that he learned of the State’s

offer only when he read the record of proceedings and that, had he known of the offer, he

would have accepted it. Specifically, on June 27, 2011, with defendant present, the State

informed the court that it “did make an offer, taking the enhancement off of one of the

murder charges, allowing the defendant[ ] to then plead to a sentencing cap of 60. That offer

was extended.” Then, defense counsel represented to the court that he had spoken with

defendant numerous times regarding the State’s offer and its conditions. In light of the offer,

counsel recounted, he and defendant discussed that defendant could proceed to trial by judge

or jury, proceed to a stipulated bench trial, or accept the plea “taking the enhancer off the

murder; that he would be looking at sentencing within a 20- to 60-year range.” Counsel

represented, asking defendant to correct him if he was wrong, that defendant wished to

proceed with a stipulated bench trial. Defendant stated that counsel was correct. Counsel then

reiterated twice more that defendant still had time to decide whether he wished to accept the

State’s offer of a blind plea with the 20- to 60-year sentencing range. Finally, the court

discussed with defendant that the State had made an offer that would reduce the sentencing

range to 20 to 60 years, as opposed to 60 to 100 years. The court reminded defendant that it

was an important decision and that, while he should listen to advice of counsel, the decision

was ultimately his to make. Defendant repeatedly stated that he understood.

¶ 17 The record, therefore, affirmatively rebuts defendant’s allegations that he did not know

the State’s “true” offer and that, if he had known of the offer, he would have accepted it.

Defendant concedes that the court and counsel informed him of and questioned him about the

State’s offer. However, he asserts, without citation to authority, that we should not find his

allegations rebutted by the record, because the aforementioned discussion in court was

“overridden” by counsel’s comments off the record. We disagree. Simply put, it is not

arguable that defendant was prejudiced by any failure of counsel to communicate off the

record the State’s offer of 20 to 60 years, because any error was clearly remedied by the

numerous on-record explanations of the offer. The court properly dismissed this

ineffective-assistance allegation.

¶ 18 2. Alleged Misrepresentations and Jury Waiver

¶ 19 Next, defendant argues that, off the record, counsel recommended that he proceed with a

bench trial, stating that defendant should waive a jury trial because a bench trial would be

easier to appeal from and that, via a bench trial, it would be possible to appeal the

suppression ruling. Defendant asserts that he relied on counsel’s misrepresentations, that his

jury waiver was therefore not voluntary, and that, absent those statements (as well as

comments by the trial court allegedly affirming the erroneous advice), he would have elected

a jury trial. Defendant argues that there was simply no tactical advantage to proceeding to a

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stipulated bench trial, as opposed to a jury or nonstipulated bench trial. Finally, defendant

again asserts without authority that any admonishments the court gave him on the record are

overridden by counsel’s affirmative misrepresentations off the record. We disagree.

¶ 20 To the extent that defendant inferred from counsel’s advice that he could appeal the

suppression ruling only via a bench trial (as opposed to a jury trial), that inference was

rebutted by the record. Specifically, on June 27, 2011, at a pretrial proceeding, defendant was

present with counsel, who summarized for the court that he and defendant had numerous

conversations about defendant’s options, which included proceeding to trial in front of a

judge or jury, accepting the State’s plea offer, or, alternatively, submitting to a stipulated

bench trial, “where both sides would agree to the evidence that would be presented,” and

“that[,] if he did a stipulated bench trial, that he would be looking at the ability to appeal the

court’s ruling on the motions [to suppress the confession], which would be basically the only

reason to go forward with a stipulated bench trial.” In context, it is clear that counsel’s

reference to proceeding with a stipulated bench trial, whereby defendant could preserve the

ability to appeal the court’s suppression ruling, was to contrast that procedure not with a jury

or nonstipulated bench trial but with entering a guilty plea, whereby defendant would forfeit

his right to appeal the suppression ruling. See, e.g., People v. Horton, 143 Ill. 2d 11, 22

(1991) (a guilty plea waives all nonjurisdictional defenses or defects, and “a stipulated bench

trial can avoid the waiver rule while still allowing the parties to proceed with the benefits and

conveniences of a guilty plea procedure”). Later, on July 1, 2011, the court again explained

this concept to defendant, where it discussed the process for holding a stipulated bench trial

and stated:

“THE COURT: Sometimes this procedure is done because it is a way that a

person can preserve the issue for appeal; in other words, we had those motions to

suppress; and if you want to appeal those issues, you can’t plead guilty; you have to

have a trial; and this is a way to have a trial so that you can appeal the ruling on those

motions.

I want you to hear from me that you can still do that.

Do you understand that?

DEFENDANT: Yes.

THE COURT: Is that part of your interest?

DEFENDANT: Yes.” (Emphases added.)

Accordingly, defendant’s allegation that counsel induced him to believe that a bench trial (as

opposed to a jury trial) would allow him to appeal the suppression ruling is rebutted by the

record, which shows that he knew that it was a trial (as opposed to a guilty plea) that would

preserve that appeal.

¶ 21 This leaves defendant’s contention that counsel told him off the record that a bench trial

is easier to appeal from than a jury trial, a misrepresentation without which defendant would

have chosen a jury trial. As we read defendant’s petition, the only specific way that an appeal

would have been “easier,” according to counsel, was that an appeal from a bench trial, unlike

a jury trial, would have enabled defendant to raise the suppression issue. That is, we see this

allegation as essentially a broader statement of the claim that we addressed above, and thus it

fails for the same reason. The record shows that defendant knew that an appeal on the

suppression issue required only a trial, not necessarily a bench trial.

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¶ 22 More generally, the record belies any assertion that defendant did not voluntarily waive

his right to a jury. To establish this point, lengthy recitation of the record is helpful. At the

June 27, 2011, pretrial hearing, counsel stated that he had discussed with defendant the

possibilities of proceeding with either a bench or a jury trial, and, further:

“COUNSEL: I have discussed the evidence; I have discussed the evidence

extensively with my client; the pluses and minuses; the advantages and disadvantages

of going to trial. I have given him my opinion as to what the best course of action

would be.

And, [defendant]–correct me if I am wrong–but after having spoken [about] all

that, it is your intention, and you want to go forward with doing a stipulated bench

trial; is that correct?

DEFENDANT: Yeah.”

Counsel continued:

“COUNSEL: We can do one of two things on Friday: We can either take the offer

that was made by the State, which is a blind plea of guilty on the 20 to 60 years,

which I understand you don’t want to do; or we can go forward on Friday with a

stipulated bench trial, in which case, as I said before, everybody would agree as to

what the evidence would show at trial; the Judge would make a finding; you would

have certain rights, then, on appeal.

Both of these options are not open past Friday. If either one of those option[s]

does not take place on Friday, on July 18th we will be going to trial.

Do you understand that?

DEFENDANT: Yeah.

COUNSEL: You don’t have to make a decision right now; but on Friday, if the

case doesn’t end either by a plea within the 20 to 60 range or stipulated bench trial, on

July 18th we are going to trial.

Do you understand that?

DEFENDANT: Yeah.

COUNSEL: And I have explained that to you?

DEFENDANT: Yes.”

¶ 23 The trial court then reviewed the options of a plea agreement, “regular trial; either by a

judge or by a jury,” or a stipulated bench trial, “that’s not a plea of guilty. That’s a trial just

where all the evidence comes in by agreement. It takes five or ten minutes instead of four or

five days. But that’s where [in contrast to the plea offer], I would sentence you to between 60

and 100 years in prison if I find you guilty of that.” The court informed defendant that he

should carefully consider the decision, that it was his decision to make, and that “if you don’t

make a decision, that means we are having a jury trial. That’s how it works. Do you

understand that, sir?” (Emphasis added.) Defendant answered, “Yes.”

¶ 24 On July 1, 2011, defendant returned to court to waive his right to a jury and to proceed

with a stipulated bench trial. Both counsel and the trial court again engaged in lengthy

conversation with defendant about that choice:

“COUNSEL: Based on our conversations; which we met at the jail many times; I

talked with family members; do you understand what a stipulated bench trial is?

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DEFENDANT: Yes.

COUNSEL: Do you understand today what we are doing is[,] instead of going

forward with an actual trial in which the State is going to present witnesses[,] I get the

opportunity to cross examine those witnesses[,] and we get the opportunity to put on

witnesses after that[,] we are [instead] simply stipulating in writing as to what the

State’s witnesses would say were they to be called at trial? Do you understand that?

DEFENDANT: Yes.

COUNSEL: We arrived at this decision after months and months of consultation

about your possible options on this; is that correct?

DEFENDANT: Yes.

***

COUNSEL: Now, based on that[, i.e., defendant’s decision not to accept the

State’s plea offer], I told you you had a couple of options: We can do what we are

doing today, which is called the stipulated bench trial; we could take it to an actual

trial either in front of [the judge] or in front of a jury of 12 people who would sit and

listen to the evidence on that; do you recall discussing all of those options?

DEFENDANT: Correct.

COUNSEL: Okay. And do you recall discussing with me the advantages and

disadvantages of each of the options?

DEFENDANT: Yes.

COUNSEL: The advantages and disadvantages of going forward like you say you

want to do today with a stipulated bench trial?

DEFENDANT: Right.

COUNSEL: The advantages and disadvantages of going to a trial with live

witnesses either in front of a judge or in front of a jury.

DEFENDANT: Yes.

***

COUNSEL: Based on my professional opinion, you came to your own conclusion

as to what direction you wanted to go in[,] is that correct?

DEFENDANT: Correct.

***

COUNSEL: I gave you my opinion[,] is that correct?

DEFENDANT: Your opinion.

COUNSEL: Okay. Now, what you are doing today is based on your analysis of

what I told you[,] and is your own decision[,] is that right?

DEFENDANT: Correct.

***

COUNSEL: Once again, I won’t beat a dead horse; but I just want to ask you, this

will be the last time: Is this what you want to do today?

DEFENDANT: Yes.” (Emphases added.)

Defendant further agreed that he: (1) understood that giving up his right to a trial by jury

meant that no jurors would listen to the evidence; (2) had considered counsel’s advice, but

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came to his own conclusion about which option to pursue; (3) did not feel in any way

coerced, threatened, or pressured to proceed with a stipulated bench trial; and (4) felt that he

and counsel had sufficiently discussed the options and that he understood what he was

choosing.

¶ 25 Thereafter, the trial court further admonished defendant about his choice. Specifically,

the court explained:

“THE COURT: You have a right to have this case decided by a jury. A jury is 12

people who are picked from the community. They would come to court[,] listen to the

evidence[,] and before you could be found guilty, they would have to unanimously

decide that the evidence is sufficient to prove you guilty beyond a reasonable doubt.

Do you understand what a jury is?

DEFENDANT: Yes.

THE COURT: I was handed this form marked Waiver of Jury Trial; is this your

signature, and are these your initials?

DEFENDANT: Yes.

THE COURT: By signing this form and initialing it here, you understand that

there will not be a jury; it will be a judge like I just underlined, me, who will decide

whether or not evidence is sufficient to prove you guilty beyond a reasonable doubt.

DEFENDANT: Yes.

THE COURT: Have you spoken to [counsel] about this?

DEFENDANT: Yes.

COURT: It is an important decision. It is one you should ask him for his advice.

But in the end, advice is all he can give you; it has to be your decision to make.

Do you understand that?

DEFENDANT: Yes.

THE COURT: Do you have any more questions for [counsel] about this; or any

questions for me, for that matter?

DEFENDANT: No.

THE COURT: Do you want to have a jury decide this case or a judge decide this

case?

DEFENDANT: Stipulated bench trial.

THE COURT: Has anyone forced you or threatened you to get you to make this

decision?

DEFENDANT: No.

THE COURT: Has anyone promised you anything at all in exchange for this?

DEFENDANT: No.

THE COURT: You are making this decision of your own free will?

DEFENDANT: Yes.

THE COURT: All right. The Court finds the defendant has made a knowing and

voluntary waiver of a jury.” (Emphasis added.)

¶ 26 In light of the foregoing on-the-record discussions, we find completely disingenuous

defendant’s assertion that his jury waiver was involuntary. Indeed, the court noted that

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defendant “strikes me[,] from what I have seen of him, not only today but throughout the

hearing, as well as in other information[,] to be an intelligent young man who is trying to

make the best of a bad situation perhaps.” Counsel agreed, adding, “in my conversations with

[defendant], I have never had any problems communicating. I have never had any indication

that he hasn’t understood what I have had to say. And we have been able to look at what our

options are in a very analytical manner.” Therefore, as the record reflects that defendant was

thoroughly admonished on the record about his options and that he knowingly chose a

stipulated bench trial, it is not arguable that his jury waiver was involuntary.

¶ 27 Further, we note that defendant asserts that, had he proceeded with a jury trial or a

nonstipulated bench trial, he would have stood a stronger chance of success on the merits.

We completely disagree. Given defendant’s videotaped confession, he would have had

virtually no chance of success at a trial of any kind. Accordingly, for all of the foregoing

reasons, the court properly dismissed this ineffective-assistance claim.

¶ 28 3. Remaining Claims

¶ 29 We combine our analysis of defendant’s remaining challenges to trial counsel’s

effectiveness, as they all generally fall under the broad category of trial preparation and

performance. Those challenges include defendant’s contentions that counsel failed to: (1)

investigate or present affirmative defenses, particularly an alibi defense; (2) offer opening

and closing statements; (3) properly advise defendant about his right to testify; and (4)

investigate mitigating evidence and challenge the State’s aggravating evidence. Each of these

claims fails.

¶ 30 First, defendant argues that counsel never investigated his alibi defense, as supported by

Edwin’s affidavit, that, when the crime occurred, defendant was at home sleeping. On the

record, however, the court asked counsel at the sentencing hearing if he had continued to

investigate the case, including potential witnesses, defenses, “alibi” issues, etc., and counsel

stated that he had spoken with both defendant and his family about possible defenses, and

how they would “play out,” and that he had “very, very carefully analyzed that before going

forward in any way.” Counsel informed the court that he had spoken with defendant’s family

members and possible witnesses about information they could offer and had discussed that

information with defendant. Accordingly, the record belies defendant’s assertion that counsel

did not investigate defenses.

¶ 31 Further, defendant’s allegation fails under both ineffective-assistance prongs. Where

defendant confessed to the crime and, further, his alleged alibi witness (the source of the only

affidavit attached to his postconviction petition) was his brother and codefendant, who had

also confessed to the crime, counsel was not arguably objectively unreasonable for not

presenting an alibi defense. “Trial strategy includes an attorney’s choice of one theory of

defense over another,” and, where the alibi defense was inconsistent with defendant’s

statements to police, which were not suppressed, counsel was not arguably objectively

unreasonable for instead pursuing an avenue that merely preserved defendant’s ability to

appeal the suppression ruling. (Internal quotation marks omitted.) People v. Cunningham,

376 Ill. App. 3d 298, 301-02 (2007). Further, it is not arguable that presentation of an alibi

defense would have altered the outcome of these proceedings. Again, once defendant’s

suppression motion was denied, his confession and other evidence constituted overwhelming

evidence of his guilt. An alibi defense would have been inconsistent with defendant’s

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videotaped statement. Finally, we note that counsel did, indeed, present a defense.

Specifically, at the stipulated bench trial, the evidence included the entire record from the

suppression hearing, which included counsel’s extensive cross-examinations and argument.

Thus, by including the evidence from the suppression hearing, counsel preserved defendant’s

only credible defense and repeatedly made clear that the purpose of the stipulated bench trial

was to preserve defendant’s suppression issue. See, e.g., People v. Horton, 143 Ill. 2d 11, 22

(1991). The ineffective-assistance claim was properly dismissed.

¶ 32 Second, defendant’s challenges to counsel’s alleged failure to present opening and

closing arguments at the stipulated bench trial similarly fail because those decisions fall

squarely within the strategic purview of the attorney and cannot arguably be considered,

particularly at a bench trial where the evidence is stipulated, to be objectively unreasonable.

See People v. Conley, 118 Ill. App. 3d 122, 127-28 (1983) (waiver of opening and closing

statements has been “recognized repeatedly as a matter of trial strategy *** particularly in a

bench trial”). Moreover, counsel did present a closing argument, stating:

“The only final thing I would say is that every step that has been taken in this

case, the decisions that have been made have been made by my client with many

reasons in mind. And I think a lot of them are obvious. And that all the decisions

were made with my professional counsel, my professional opinion regarding various

methods to go, and things that could be done with the trial, and that’s why we are

pursuing in this particular way. It has been very, very carefully thought out and

discussed; and there is a reason why we are doing what we are doing today.”

The trial court, in dismissing this claim, aptly summarized counsel’s closing argument as a

strategic method of “remind[ing] the trial court that defendant was utilizing the stipulated

bench trial procedure to preserve the rulings on the motions to suppress for appellate review.

In doing so, defense counsel diplomatically conveyed defendant’s position that the

statements should not be considered reliable or credible at trial.” As defendant’s claim fails

under both ineffective-assistance prongs, the court properly dismissed it.

¶ 33 Third, defendant’s claim that counsel improperly advised him not to testify at trial fails

because it is belied by the record and defendant cannot establish deficiency or prejudice.

Generally speaking, unless counsel refused to allow defendant to testify, advice not to testify

constitutes trial strategy and does not support an ineffective-assistance claim. See People v.

Coleman, 2011 IL App (1st) 091005, ¶ 29. Here, defendant’s petition alleges that he:

“notified counsel that he wanted to testify to his alibi defense. Trial counsel directed

[defendant] not to testify because the State would trick him while he was on the stand

and because his appeal would go better because the appellate court would only have

the witnesses[’] word and not [defendant’s]. Thus, [defendant], thinking trial counsel

knew best, decided not to take the stand.

***

[Defendant] was going to testify to his alibi until trial counsel directed him not to

due to his reasons which were baseless in law.” (Emphasis added.)

Therefore, defendant’s allegations reflect that counsel did not prohibit defendant from

testifying but, rather, counsel gave strategic advice, defendant listened to that advice, and

defendant chose not to testify. Given that the evidence included defendant’s videotaped

confession, counsel’s advice that defendant not present the State an opportunity for

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cross-examination and possible impeachment was well within the range of reasonable

professional assistance. Further, the record reflects that both counsel and the trial court

thoroughly addressed defendant’s right to testify, admonishing defendant of his right to

testify and confirming that defendant’s decision not to testify was his own, and that the court

ultimately found that defendant’s waiver of his right to testify was knowing, intelligent, and

voluntary. Again, defendant claims without authority that his attorney’s private conversations

with him trumped the on-record conversations. As discussed, however, defendant cannot

establish either that it is arguable that counsel’s performance was deficient or that it is

arguable that, but for counsel’s advice, the result of the proceeding would have been

different. Accordingly, the court properly dismissed the ineffective-assistance claim.

¶ 34 Fourth, defendant argues that counsel was ineffective for failing to present mitigating

evidence and failing to challenge the State’s aggravating evidence at sentencing. In sum,

defendant contends that counsel’s broad discretion to call witnesses and present evidence

does not extend to a failure to investigate or prepare any evidence at all. While this concept

might be true, that is not what happened here.

¶ 35 Here, counsel presented mitigating evidence in the form of letters from defendant’s father

and a family friend. Defendant argues that counsel should have presented witnesses instead

and that his decision not to do so, based simply on language barriers, qualifies as ineffective

assistance. This oversimplifies counsel’s decision. Specifically, before the sentencing

hearing, counsel informed the court that he intended to present testimony in mitigation and

that, while some mitigating evidence would come in by letter, he did not want to present

repetitive evidence. At sentencing, however, counsel tendered as evidence in mitigation the

letters and noted, although several of defendant’s family members were present in court, “I

believe that what has been expressed to you in those letters are the expressions of the rest of

the family. I can represent that as an officer of the court.” Counsel noted that language

barriers would make it very difficult for the witnesses to communicate. The court offered the

assistance of an interpreter, but counsel explained that “it’s very emotionally charged for

everybody. I spoke with the family members. They are here for support. I think their

presence here communicates as well as they could verbally. I don’t think you’re going to find

a situation where a family member would have anything but wonderful things to say about

their family.” While this was not evidence, counsel provided lengthy argument to support

mitigation in sentencing. We further note that defendant does not attach any affidavits to his

petition to demonstrate what mitigating witnesses might have said that would not have been

merely cumulative of the sentiments expressed by the letters presented to the court.

Therefore, contrary to defendant’s assertion, the record reflects that counsel did not fail to

investigate or present mitigating evidence. His strategy to present the letters as representative

of the position and sentiment of all of defendant’s witnesses was not arguably objectively

unreasonable, and the record does not reflect that, had the witnesses testified, their testimony

would not have been merely cumulative or would arguably have resulted in a different

sentence.

¶ 36 As to counsel’s failure to object to the State’s “incorrect” aggravating evidence,

defendant apparently means the State’s mention of the information in the presentencing

report that defendant committed a “beat-down” of a rival gang member while incarcerated

and that he “has been sent to the administrative segregation unit four separate times for

various activities” (including as punishment for the “beat-down”). When announcing its

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sentence, the court mentioned the incident, noting that defendant participated “in a fight in

jail because a gang put a hit on somebody.” Defendant contends, however, that he

immediately informed counsel that the “beat-down” evidence was erroneous because he was

cleared of that charge after a hearing by a jail committee. Nevertheless, counsel did not

object to the incorrect information.

¶ 37 Counsel’s decision not to object during the State’s sentencing argument constitutes a

strategic decision. See People v. Probst, 344 Ill. App. 3d 378, 387 (2003) (a failure to object

is a matter of trial strategy). However, even if we were to consider the decision arguably

objectively unreasonable, defendant still cannot establish that it is arguable that, if counsel

had objected that one of defendant’s four trips to segregation was ultimately deemed

unwarranted, the court would have imposed a different sentence. The court properly

dismissed defendant’s ineffective-assistance claim.

¶ 38 Finally, defendant asserts that counsel’s errors cumulatively deprived him of effective

representation. This claim fails because defendant has not identified any error and, where

there is no individual error, there cannot be cumulative error. See People v. Garmon, 394 Ill.

App. 3d 977, 991 (2009).

¶ 39 C. Ineffective Assistance of Appellate Counsel

¶ 40 Defendant also alleges in his petition that he received ineffective assistance from

appellate counsel, who did not raise any of the aforementioned issues on direct appeal. This

claim fails. As mentioned, appellate counsel raised issues concerning the suppression of

defendant’s confession, the applicability of extended-term sentencing, and the imposition of

a public defender fee without inquiry into defendant’s ability to pay. This court affirmed in

part (denial of motion to suppress and extended-term sentencing), reversed in part (public

defender fee), and remanded (for inquiry into defendant’s ability to pay the fee). Thus,

appellate counsel’s efforts on defendant’s behalf were partially successful. Further,

“[a]ppellate counsel is not obligated to brief every conceivable issue on appeal, and it is not

incompetence of counsel to refrain from raising issues which, in his or her judgment, are

without merit, unless counsel’s appraisal of the merits is patently wrong. Accordingly, unless

the underlying issues are meritorious, [the] defendant has suffered no prejudice from

counsel’s failure to raise them on appeal.” (Internal quotation marks omitted.) People v.

Coleman, 2011 IL App (1st) 091005, ¶ 42. Here, defendant’s petition fails to raise any

meritorious issues and, therefore, appellate counsel was not arguably ineffective for failing to

raise the same. The petition was properly dismissed as frivolous and patently without merit.

¶ 41 III. CONCLUSION

¶ 42 For the reasons stated, the judgment of the circuit court of Lake County is affirmed.

¶ 43 Affirmed.

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