Fourth District reverses conviction and sentence of petitioner where trial counsel and court failed to properly advise him of sentencing range (People v. Brown, 2014 IL App (4th) 120887)

People v. Brown, 2014 IL App (4th) 120887 (October 8, 2014) McLean Co. Reversed and remanded. Defendant shot and killed two people, firing 14 shots that resulted in 11 gunshot wounds. Defendant was charged with, inter alia, six counts of first-degree murder. He claimed self-defense. The defendant did not request a second-degree murder instruction at trial. Instead, he requested a self-defense instruction, which the court gave. The jury found defendant guilty on two counts of first-degree murder and an aggravated battery with a firearm charge relating to the shooting of another man. Defendant was acquitted of an aggravated battery count as it related to yet a fourth person. The defendant was sentenced to life in prison on the first-degree murder counts and a concurrent sentence of 30 years DOC on the aggravated battery count. The appellate court affirmed his conviction on direct appeal, and he was denied PLA.

The defendant then filed a pro se post-conviction petition, alleging ineffective assistance of counsel for his defense lawyer’s failure to advise him that if he was convicted on both fist-degree murder counts that he would be subject to a natural life sentence. The defendant claimed that had he known that he could be sentenced to natural life if convicted on both first-degree murder counts, he would not have agreed with counsel’s advice to forego the tendering of the second-degree murder instruction. The trial court dismissed the defendant’s pro se petition at the first stage, finding that the “decision to forego the second-degree-murder instruction was not objectively deficient based on the court’s admonishments and the fact defendant clearly preferred, as a matter of trial strategy, to give the jury only the options of guilty of first degree murder or acquittal of first degree murder on the grounds of self-defense. The court further found, even though counsel may have been incorrect in advising defendant of the maximum penalty he faced if found guilty of first degree murder of both victims, the record reflected at the arraignment the court had fully advised defendant of the potential penalties he faced, including natural life in prison.” ¶ 12. Defendant appealed. The Appellate Defender filed a motion to withdraw under Pennsylvania v. Finley, 481 U.S. 551 (1987), asserting no meritorious issues could be raised. The Appellate Court denied the motion.

The Brown court held that counsel was ineffective for failing to advise defendant on the appropriate sentencing range. Furthermore, the trial court never admonished the defendant that he could be subject to a natural life sentence if convicted on both first-degree murder charges. The Court noted that “Defendant had the right to decide whether to tender a second-degree-murder instruction, People v. Brocksmith, 162 Ill. 2d 224, 229, 642 N.E.2d 1230, 1232 (1994), but the defendant made the decision based on incorrect information he was given. The court further found that defendant was prejudiced by counsel’s errors because it was “arguable a reasonable probability exists the jury, if presented with a second-degree-murder instruction, would have convicted defendant of second degree murder instead of first degree murder.” ¶ 26. The Court held that defendant’s ineffective assistance claim based on the second-degree jury instruction issue satisfied the “gist” standard sufficiently to survive first-stage dismissal and remanded the case to the trial court for second-stage proceedings.

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