# People v. Chandler

> Illinois Supreme Court · June 19, 1989 · 129 Ill. 2d 233

URL: https://www.frixlaw.com/law-library/cases/9716562

## Case

- **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MARK F. CHANDLER, Appellant
- **Court:** Illinois Supreme Court
- **Decided:** June 19, 1989
- **Citations:** 129 Ill. 2d 233; 135 Ill. Dec. 543; 543 N.E.2d 1290; 1989 Ill. LEXIS 84
- **Precedential status:** Published
- **Opinion:** Dissent by Miller
- **Judges:** Stamos, Ryan, Miller
- **Cited by:** 154 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9716562

## How later opinions describe it (automated extraction)

- holding ineffective assistance where counsel argued that his client could not be found guilty of murder if he did not inflict the fatal wound even though the jury was instructed on felony murder and murder based on accountability
- finding counsel’s representation deficient where his strategy could not have benefited the defendant even if he had been successful
- noting that the "judiciary possesses the authority to read language into a statute which has been omitted through legislative oversight"

## Opinion text

JUSTICE MILLER, also dissenting:
I do not agree with the majority’s conclusion that the defendant was denied the effective assistance of counsel at trial, nor can I accept the majority’s additional holding that the trial judge relied on an unavailable ground in finding the defendant eligible for the death penalty. Accordingly, I dissent from the court’s decision reversing the defendant’s convictions, vacating the sentence of death, and remanding the cause for a new trial.
I
Under the standard expressed in Strickland v. Washington (1984), 466 U.S. 668 , 80 L. Ed. 2d 674 , 104 S. Ct. 2052 , and adopted by this court in People v. Albanese (1984), 104 Ill. 2d 504 , a criminal defendant who claims that counsel was ineffective must generally establish both a deficiency in counsel’s performance and prejudice resulting from the deficiency. (Strickland, 466 U.S. at 687 , 80 L. Ed. 2d at 693 , 104 S. Ct. at 2064 .) There are, however, circumstances in which the effect of the violation is so clear that prejudice to the defendant may be presumed. Strickland, 466 U.S. at 692 , 80 L. Ed. 2d at 696 , 104 S. Ct. at 2067 .
This court reached such a conclusion in People v. Hattery (1985), 109 Ill. 2d 449 . In that case defense counsel acknowledged at trial that the defendant was guilty of the three murders with which he was charged; counsel’s strategy was intended to show that the defendant had committed the crimes while acting under the threat of compulsion, which is not a defense to murder but which may be sufficient as a mitigating circumstance to preclude a sentence of death. The court in Hattery held, “Counsel may not concede his client’s guilt in the hope of obtaining a more lenient sentence where a plea of not guilty has been entered, unless the record adequately shows that defendant knowingly and intelligently consented to his counsel’s strategy.” (Hattery, 109 Ill. 2d at 465 .) There was no showing of consent, and the court ruled that the strategy deprived the defendant “of the right of having the issue of his guilt or innocence presented to the jury as an adversarial issue.” (Hattery, 109 Ill. 2d at 464 .) Because the defense strategy was “an impermissible one,” the court refused to consider whether the defendant was prejudiced as a result of counsel’s representation. Hattery, 109 Ill. 2d at 464-65 .
In this case, the defendant contends that trial counsel improperly conceded his guilt of the charges and that a new trial is therefore required under Hattery. The majority properly rejects the defendant’s Hattery argument, holding that defense counsel did not make an unequivocal concession of his client’s guilt. Having determined that counsel’s performance did not violate Hattery, the majority goes on to consider, however, an argument that the defendant does not raise in the present appeal: that counsel was ineffective under the two-part standard contained in Strickland. In determining that the defendant was denied the effective assistance of counsel under the Strickland standard, the majority fails to consider whether the defendant was prejudiced as a result of counsel’s performance and therefore reaches a result that is inconsistent with its earlier rejection of the defendant’s Hattery claim.
Under Strickland’s two-part inquiry, a defendant must establish both that counsel’s performance was deficient and that the deficiency was prejudicial. With respect to the prejudice component of the test, Strickland advised, “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” (Strickland, 466 U.S. at 691 , 80 L. Ed. 2d at 696 , 104 S. Ct. at 2066 .) To establish prejudice, a defendant alleging ineffective assistance of counsel “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694 , 80 L. Ed. 2d at 698 , 104 S. Ct. at 2068 .
In this case, however, the majority opinion simply assumes, without discussion, that prejudice occurred. The court apparently bases its result on the notion that defense counsel’s closing argument compelled the jury to convict the defendant of all the charges, if it was to follow its instructions faithfully. I do not believe that the jurors could have construed counsel’s remarks as taking from them the question whether the defendant was guilty or innocent of the crimes. Defense counsel began his argument by reminding the jurors of the presumption of innocence and of the State’s burden of proving guilt beyond a reasonable doubt. Responding to the State’s contention that it was the defendant and not the accomplice who had committed the murder, defense counsel then sought to demonstrate that the State’s theory of guilt was inconsistent with the defendant’s statements to the police. In support of that argument, counsel referred to a number of points in which the defendant’s confession had proved to be accurate. As the majority recognizes in rejecting the Hattery argument, counsel did not unequivocally concede the defendant’s guilt at trial. Moreover, the evidence of guilt was overwhelming, and I do not believe that defense counsel’s remarks to the jury rendered the result of the trial unreliable. I would conclude that the defendant was not prejudiced as a result of counsel’s argument, assuming that error occurred.
II
I must also disagree with the majority’s conclusion that the trial judge relied on an unavailable ground in finding the defendant eligible for the death penalty.
The defendant’s eligibility for the death penalty was based on section 9 — 1(b)(6) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(b)(6)), which authorizes the imposition of that sentence when murder is committed in the course of certain specified felonies. The predicate offenses include burglary but not residential burglary (see Ill. Rev. Stat. 1985, ch. 38, par. 9— 1(b)(6)(c)). The defendant, who had been tried by a jury, waived the jury for purposes of sentencing. In finding the defendant eligible for the death penalty under section 9 — 1(b)(6), the trial judge ruled that burglary was an included offense of residential burglary, and that the defendant’s conviction at trial for residential burglary necessarily constituted a conviction for burglary.
The State makes two contentions in this appeal in support of the trial court’s finding that the defendant was eligible for the death penalty. First, the State argues that the omission of residential burglary from the list of predicate felonies in section 9 — 1(b)(6)(c) was an oversight by the legislature, and the State invites us to construe the provision as containing that offense. Second, the State argues that burglary is an included offense of residential burglary, and the State concludes that the defendant’s conviction for residential burglary meant that he was proved guilty of burglary as well.
In People v. Walker (1982), 91 Ill. 2d 502 , the defendant argued that an attempt to commit one of the felonies specified in section 9 — 1(b)(6)(c) could not serve as the predicate for a death sentence imposed under that provision. At that time, section 9 — 1(b)(6)(c) did not expressly apply to attempts to commit the felonies specified in that provision; the statute has since been amended to include attempts to commit those felonies. (See Pub. Act 82— 1025, eff. December 15, 1982 (amending Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(b)(6)(c)).) Walker rejected the defendant’s argument, noting that the statute requires only that the murder have been committed “in the course of” one of the enumerated felonies. The court stated:
“[Sjection 9 — 1(b)(6) of our death penalty statute requires only that the State prove beyond a reasonable doubt, inter alia, that the murder was committed in the course of one of the felonies enumerated in section 9 — 1(b)(6)(c). The phrase ‘in the course of' does not require that the defendant complete one of the enumerated felonies or that he be charged and convicted of any offense other than murder to be eligible for the death penalty.” (Walker, 91 Ill. 2d at 512 .)
Thus, Walker provides that a defendant may be eligible for the death penalty under section 9 — 1(b)(6) even though he was not charged with or convicted of the predicate felony. Accord People v. Shum (1987), 117 Ill. 2d 317, 365 (insufficiency of evidence to sustain defendant’s rape conviction would not affect death-penalty eligibility under section 9 — 1(b)(6)(c), as evidence clearly showed that murder occurred in course of attempt to commit rape); see also People v. Ramirez (1983), 98 Ill. 2d 439, 457-59 (defendant’s conviction for attempted, rather than completed, predicate felony no bar to death-penalty eligibility under section 9 — 1(b)(6)(c); applicable version of statute same as in Walker).
In declining to consider the State’s argument that burglary is an included offense of residential burglary, the majority expresses its concern that, even if it is assumed that the one offense is included in the other, a conviction could have been imposed only on the more serious offense, residential burglary. As we have seen, residential burglary is not a felony enumerated in section 9 — 1(b)(6)(c) but burglary is, and the majority believes that the absence of a conviction for burglary would preclude a finding of eligibility under that provision. (129 Ill. 2d at 255.) That concern is misplaced. As Walker teaches, it is not necessary for a finding of death-penalty eligibility under section 9 — 1(b)(6)(c) that the defendant have been charged with or convicted of burglary, the predicate felony here.
Moreover, there is no need to decide in this case whether burglary is an included offense of residential burglary. In the proceedings below, the State apparently sought to establish that relationship between burglary and residential burglary because the jury had already convicted the defendant of the latter offense. But as we have seen in Walker, the finding that the murder was committed in the course of one of the felonies specified in section 9 — 1(b)(6)(c) may be made in the first stage of the sentencing hearing. In the present case, the defendant waived a jury for purposes of the sentencing hearing, and the trial judge found that the murder had been committed in the course of a burglary. Under Walker, that finding would be sufficient to establish the defendant’s eligibility for the death penalty pursuant to section 9 — 1(b)(6). Given that result, we have no occasion to consider the State’s additional argument that the omission of residential burglary from the list of felonies specified in section 9 — 1(b)(6)(c) is a matter that may properly be remedied by the judiciary.
Ill
For the reasons indicated, I respectfully dissent from the majority’s conclusions that the defendant was denied the effective assistance of counsel at trial and that the defendant’s eligibility for the death penalty rested on an improper ground. I would therefore consider the remaining arguments raised by the defendant in the present appeal.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9716562. Public record. Not legal advice.