Opinion
3-11-0765
07-17-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALAN W. BREEDLOVE, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of the 10th Judicial Circuit,
Tazewell County, Illinois,
Appeal No. 3-11-0765
Circuit No. 00-CF-302
Honorable Stuart P. Borden, Judge, Presiding.
JUSTICE delivered the judgment of the court.
Justices Holdridge and Lytton concurred in the judgment.
ORDER
¶ 1 Held: Where defendant's amended postconviction petition alleged a substantial showing of a constitutional violation of a denial of effective assistance of counsel, the trial court erred in dismissing the petition at the second stage of the postconviction proceedings without an evidentiary hearing. ¶ 2 Following a jury trial, defendant, Alan W. Breedlove, was convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West 2000)) and sentenced to 50 years of imprisonment. This court affirmed the trial court's judgment on direct appeal. People v. Breedlove, 342 Ill. App. 3d 924 (2003), aff'd, 213 Ill. 2d 509 (2004). Defendant filed a pro se postconviction petition, which was dismissed. Defendant appealed, and this court remanded the case for defendant's postconviction counsel to review defendant's pro se postconviction petition and file any necessary amendments. People v. Breedlove, No. 3-08-0082 (2010) (unpublished order under Supreme Court Rule 23). ¶ 3 On remand, defendant's postconviction counsel filed an amended postconviction petition. The circuit court granted the State's motion to dismiss the amended petition at the second stage of the proceedings. Defendant appeals, arguing that this case should be remanded for a third-stage evidentiary hearing because the allegations in the petition made a substantial showing of a constitutional violation. We reverse and remand for an evidentiary hearing.
¶ 4 FACTS
¶ 5 Defendant was charged by way of a five-count bill of indictment with the first degree murder of his ex-wife, Valerie Rakestraw. On the morning of April 26, 2000, defendant and Valerie were in Valerie's apartment when a fire broke out. Defendant was pulled from the fire out of the apartment's south door. Defendant had incurred burns to his face, arms, and torso, and had cuts on his inner forearms and neck. A badly burned body, later identified as Valerie, was found near the north door. Valerie had been stabbed multiple times in the chest and back. A hunting knife was found next to her body. ¶ 6 On June 2, 2000, defendant was charged with Valerie's murder. On June 23, 2000, the court appointed a public defender to represent defendant at trial. On February 20, 2001, in response to defendant's request for another attorney, the public defender's office assigned a second public defender to assist defendant's trial counsel. On May 22, 2001, defendant's jury trial began. ¶ 7 At trial, the State's evidence showed that Valerie and her new husband, John Rakestraw, were married 34 days prior to her death. John and Valerie lived in an apartment next to Valerie's son, Jeff Breedlove. Valerie had two adult children, Jeff and Brent Breedlove, whom had been adopted by defendant when they were younger. Valerie and defendant had been divorced twice. Even after Valerie married John, Valerie and defendant continued to speak on the telephone and visit each other. ¶ 8 Jeff had worked for John for five years, and they always drove into work together. On the morning of Valerie's death, John and Jeff left for work together at 6:30 a.m. Valerie, who went to work at 7 a.m., was at home when they left. At 6:40 a.m., John and Jeff passed defendant, who was driving in the opposite direction. Jeff learned of his mother's death a few minutes after 7 a.m. ¶ 9 Christopher Sprague testified that on the morning of Valerie's death he approached the south door of Valerie's apartment just before 7 a.m. to serve papers on her concerning medical bills. He also had papers to be served on defendant. As Sprague approached the apartment, he heard a man and woman yelling. Sprague waited outside the door anticipating that Valerie would be coming out of the apartment. Defendant opened the door 12 inches and stood with the left side of his body outside the door. Sprague explained that he was serving papers on Valerie. Sprague heard a woman's voice asking for help. Defendant grabbed the papers and slammed the door shut. Sprague returned to his car and called 911. A few moments later, Sprague saw smoke coming out of the northeast window of Valerie's apartment. ¶ 10 John testified that in the days leading up to Valerie's death, defendant told John that he visited Valerie every morning. John testified that neither he nor Valerie owned any sort of a hunting knife. Brent testified that defendant owned knives similar to the one found at the scene. ¶ 11 Forensic pathologist Travis Hindman testified that he conducted an autopsy on Valerie's body. Hindman concluded that Valerie died from multiple stab wounds prior to the fire, which were consistent with the blade of the hunting knife found next to her body. After reviewing photographs of defendant's cuts, Hindman opined that the cuts on defendant's arms and neck were self-inflicted. ¶ 12 For the defense, defendant did not testify. A bankruptcy attorney testified that Valerie and defendant had met with him the day prior to Valerie's death, and they appeared to get along. ¶ 13 On May 24, 2001, the jury convicted defendant of first degree murder. He was sentenced to 50 years of imprisonment. On direct appeal, defendant claimed that he was not properly admonished pursuant to Illinois Supreme Court Rule 605(a) (eff. Oct. 1, 2001) regarding the preservation of his right to an appeal. This court affirmed the judgment of the circuit court, reasoning that defendant was admonished in compliance with the version of Rule 605(a) in effect at the time he was sentenced on August 10, 2001. Breedlove, 342 Ill. App. 3d 924. ¶ 14 Defendant filed a pro se postconviction petition and was appointed postconviction counsel. Postconviction counsel certified that his suggested amendments had been rejected by defendant and did not file an amended postconviction petition. The circuit court granted the State's motion to dismiss the petition, finding that all of defendant's claims could have been raised on direct appeal. The circuit court denied defendant's subsequent motion to reconsider. On appeal from the dismissal of his postconviction petition, this court remanded the case with directions for defendant's postconviction counsel to review defendant's pro se postconviction petition and file any necessary amendments. Breedlove, No. 3-08-0082. ¶ 15 On remand, defendant's postconviction counsel filed an amended postconviction petition. The amended petition alleged, inter alia, that trial counsel had been ineffective in several respects. In support of his claims, defendant alleged:
"Before, during, and after [counsel's] representation of the defendant, [counsel] was engaged in various unethical and illegal activities. [Counsel] subsequently was convicted of felony theft *** and as a result of [disciplinary] proceedings, [counsel] is no longer authorized to practice law in the State of Illinois."The circuit court granted the State's motion to dismiss the petition at the second stage of the postconviction proceedings. Defendant appeals.
¶ 16 ANALYSIS
¶ 17 On appeal, defendant argues that this court should reverse the circuit court's dismissal order and remand this case for an evidentiary hearing on the issue of whether defendant was denied the effective assistance of counsel. Review on appeal of a trial court's dismissal of a postconviction petition without an evidentiary hearing is de novo. People v. Coleman, 183 Ill. 2d 366 (1998). ¶ 18 The Post-Conviction Hearing Act (Act) provides a mechanism by which individuals under a criminal sentence can assert that they were convicted as a result of a substantial violation of their constitutional rights. 725 ILCS 5/122-1 et seq. (West 2008). The Act provides for a three-stage review process of the petition. 725 ILCS 5/122-1 et seq. (West 2008); People v. Hodges, 234 Ill. 2d 1 (2009). At the first stage, a postconviction petition may be summarily dismissed if the claims in the petition are frivolous or patently without merit. 725 ILCS 5/122- 2.1(a)(2) (West 2008). If the petition survives the first stage, an attorney is appointed to assist the petitioner if the petitioner is indigent and requests an attorney. 725 ILCS 5/122-4 (West 2008). At the second stage, a dismissal of a postconviction petition is warranted only when the petition's allegations, which should be liberally construed in favor of the petitioner and in light of the original trial record, fail to make a substantial showing of a constitutional violation. Coleman, 183 Ill. 2d 366; People v. Kitchen, 189 Ill. 2d 424 (1999). In making that determination, all well-pleaded facts in the petition are to be taken as true. Kitchen, 189 Ill. 2d 424. At a third-stage evidentiary hearing, the court may receive proof by affidavits, depositions, oral testimony, or other evidence. 725 ILCS 5/122-6 (West 2008). ¶ 19 In his amended postconviction petition, defendant alleged that he was denied effective assistance of trial counsel. To prevail on a claim of ineffective assistance of counsel, defendant must establish that: (1) counsel's performance was so deficient that it fell below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668 (1984); People v. Albanese, 104 Ill. 2d 504 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. People v. Haynes, 192 Ill. 2d 437 (2000). As to the first prong, the defendant must overcome a strong presumption that counsel's action or inaction was the result of sound trial strategy. People v. Houston, 226 Ill. 2d 135 (2007).
¶ 20 A. Failure to Investigate
¶ 21 Defendant claims that his counsel was ineffective for failing to investigate. Generally, an attorney provides ineffective assistance when he fails to conduct a reasonable investigation into the evidence against his client. People v. Mitchell, 2012 IL App (1st) 100907. Whether defense counsel was ineffective for failure to investigate is determined by the value of the evidence that defendant claims was not presented at trial and the closeness of the evidence that was presented. People v. Morris, 335 Ill. App. 3d 70 (2002). Attorneys are obligated to explore all readily available sources of evidence that may be beneficial to their client. Id. Failure to investigate and develop a defense has been found to be ineffective assistance of counsel. Id. (citing People v. Wright, 111 Ill. 2d 18 (1986) (defense counsel was ineffective because his decision not to raise a defense of intoxication or present an expert witness in support of that defense was attributable to counsel's misapprehension of the law, not trial strategy)). ¶ 22 In his postconviction petition in this case, defendant alleged that his public defender attorney demanded a private payment of $25,000 on August 24, 2000, and on January 31, 2001. Defendant further alleged his trial counsel refused to investigate defendant's case unless defendant paid him the $25,000. Defendant's trial counsel told defendant's father that he would not investigate defendant's case because he could not afford to "waste his time" defending the case with the amount of money the county paid. Defendant alleged that because he could not make the $25,000 private payment to the public defender, his counsel did not investigate information pertaining to: (1) defendant's wounds not being self-inflicted; (2) a third party who had reason to kill defendant; (3) Valerie's "jealous fourth lover" who had motive to commit the crime; and (4) insurance records showing that defendant's fishing knives had been previously destroyed in a fire. In support of his allegations, defendant attached his own affidavit and the affidavit of his father to his petition. ¶ 23 Defendant's petition and supporting documents also indicated that defendant's public defender attorney was subjected to ethical and criminal charges during his representation of defendant. The charges involved allegations that defendant's counsel stole money from his clients' trust funds. He was also charged for accepting payments and agreeing to represent clients in March and November 2001, and then closing his law practice in December 2001 without notifying those clients or returning their payments. ¶ 24 Here, defendant was prejudiced if his attorney neglected defendant's case and refused to investigate readily available sources of evidence that may have been beneficial to defendant. Defendant's theory that a third person, with motive to commit the crime, stabbed defendant and Valerie, and then set the fire to the apartment should have been thoroughly investigated unless circumstances known to his attorney showed no sound basis for further inquiry. See People v. Pecoraro, 175 Ill. 2d 294 (1997). Generally, the reasonableness of a decision regarding investigation is assessed with heavy deference to counsel's judgment. Id. However, in light of the alleged circumstances of counsel's professional wrongdoings and his pending criminal and ethical charges in the year he represented defendant, we are not in a position to so heavily defer to counsel's judgment. Therefore, in taking all defendant's well-pled facts to be true at this stage of the proceedings, defendant made a substantial showing of a constitutional violation of ineffective assistance of counsel to warrant an evidentiary hearing.
¶ 25 B. Discrediting of Expert Witness
¶ 26 Defendant also alleged ineffective assistance of counsel with claims that his counsel failed to discredit the State's expert witness with testimony from an available expert regarding the origin of defendant's stab wounds. Failure to call an available witness that could bolster an otherwise uncorroborated defense cannot be conceived as sound trial strategy. People v. King, 316 Ill. App. 3d 901(2000). ¶ 27 Here, the State's circumstantial case against defendant consisted mainly of defendant being present at the time of the victim's death, defendant turning away a person who came to the door while the victim called out for help, and expert testimony that defendant's wounds were self-inflicted. Defendant alleged that the physician who treated his neck wound, Anthony Firilas, was available to testify that it was not possible to determine whether the defendant's wounds were self-inflicted. In support of his allegation, defendant attached a police report of an interview of Firilas, during which he told police that he treated the laceration to defendant's neck and there was "no way to tell if the injury was self inflicted or not." ¶ 28 Defendant also attached a letter in support of the petition from his second public defender. The letter indicated that defendant's trial counsel and second counsel differed in their strategy for cross-examining the State's expert witness who testified that based on his review of the photographs, defendant's wounds appeared to be self-inflicted. The second public defender found the conclusion of the State's expert to be "preposterous" and asked trial counsel to further explore the basis for the expert's opinion, but trial counsel responded that he could "make it worse." The second public defender thought it was extremely suspect that the State's expert testified from photographs without anything else. During cross-examination, second counsel told defendant's trial counsel to ask several specific questions, but trial counsel ignored him. ¶ 29 Taking defendant's allegations as true, defendant was prejudiced by counsel's failure to present the testimony of Firilas at trial because the testimony may have greatly bolstered the defense and discredited the testimony of the State's expert witness that defendant's wounds were self-inflicted. Evidence discrediting the State's expert witness would have been especially important because defendant essentially had no other evidence in support of his theory that a third party was present. Also, as defendant's second counsel indicated, the State's expert testified as to the origin of defendant's wounds based on photographs and nothing more. Left uncontradicted, the weak basis of the opinion of the State's expert was not highlighted to the jury and left defendant's theory of a third party's involvement unbelievable. Consequently, taking all defendant's allegations as true at this stage, defendant made a substantial showing of a constitutional violation of ineffective assistance of counsel.
¶ 30 C. Decision to Testify
¶ 31 Additionally, defendant's petition alleged that defendant was prevented from testifying by his attorney. The decision of whether to testify is ultimately for the defendant, but should be made with the advice of counsel. People v. Youngblood, 389 Ill. App. 3d 209 (2009). Counsel's advice not to testify is a matter of trial strategy and does not constitute ineffective assistance of counsel unless evidence suggests that counsel refused to allow defendant to testify. Id. In the context of an ineffective assistance of counsel claim during postconviction proceedings, the record need not show that defendant alerted the trial court that he wanted to testify, but need only show that defendant informed his attorney of his desire to testify. Id. In a postconviction proceeding, any absence in the record that defendant asserted his right to testify could be cured during an evidentiary hearing. Id. To satisfy the prejudice requirement of the Strickland test in the context of the claim of ineffective assistance for denying a defendant his right to testify, a defendant's alleged testimony must indicate how it would refute the State's case and cannot be conclusory. See People v. Barkes, 399 Ill. App. 3d 980 (2010) (defendant failed to establish prejudice by not specifying which allegations he would have refuted); Youngblood, 389 Ill. 3d 209 (no prejudice where defendant's proposed testimony had no bearing on a factual issue at trial). ¶ 32 In this case, defendant's petition alleged that when he informed his attorney of his desire to testify, his attorney threatened that defendant would represent himself at trial if he persisted with his request to testify. Defendant alleged that he could explain the State's circumstantial evidence against him, including that: (1) his wounds were not self-inflicted; (2) third parties had reason to kill defendant; (3) Valerie had a "jealous fourth lover"; and (4) his knife, similar to the one found near Valerie's body, was previously destroyed in a fire. In his affidavit, defendant asserted that his testimony would have related his version of events. ¶ 33 Defendant also attached a letter in support of his petition from his second attorney at trial in which the attorney indicated that he did not recall any conversations regarding whether defendant would testify, but that did not mean the conversations did not take place with defendant's trial attorney. Defendant's second attorney could not conceive of a reason for not allowing defendant to testify because given "the complete lack of a presentable defense" defendant's testimony could not have done any harm. ¶ 34 Here, there was no defense presented at trial to explain the State's evidence. Defendant's explanation for some of the evidence would have been beneficial for his defense. Defendant's allegations regarding counsel refusing defendant the opportunity to testify in his own defense, coupled with the allegations of trial counsel's refusal to investigate the case without a $25,000 payment, were sufficient to undermine confidence in the outcome. Therefore, the allegations, liberally construed in defendant's favor, made a substantial showing of a constitutional violation. ¶ 35 Consequently, we reverse the circuit court's dismissal of defendant's amended postconviction petition at the second stage of the postconviction proceedings and remand for an evidentiary hearing on the issue of whether defendant was denied effective assistance of counsel.
¶ 36 CONCLUSION
¶ 37 For the forgoing reasons, we reverse the judgment of the circuit court of Tazewell County and remand this cause for further proceedings. ¶ 38 Reversed and remanded.