Opinion
1-19-1100
02-18-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT BARNES, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County, No. 07 CR 22861 Honorable Thomas J. Byrne, Judge, presiding.
HOFFMAN, JUSTICE delivered the judgment of the court. Justices Cunningham and Connors concurred in the judgment.
ORDER
HOFFMAN, JUSTICE
¶ 1 Held: The circuit court erred in denying defendant's postconviction petition following a third-stage evidentiary hearing where he established that counsel on direct appeal provided ineffective assistance.
¶ 2 Following a jury trial, defendant Robert Barnes was convicted of first degree murder for shooting and killing Regis McWright (720 ILCS 5/9-1(a)(1) (West 2006)) and sentenced to 45 years' imprisonment. Defendant now appeals from the circuit court's third-stage denial of his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). Defendant argues that the trial evidence supported a jury instruction on the justified use of deadly force to prevent a felony within his dwelling but trial counsel failed to proffer the instruction and forfeited the instruction issue for review. Therefore, defendant asserts, counsel on direct appeal provided ineffective assistance by arguing that the trial court erred by failing to issue the instruction but not addressing the issue's forfeiture by alleging plain error or ineffective assistance of trial counsel. We reverse and remand for proceedings consistent with this order.
¶ 3 At trial, defendant was represented by private attorneys Marc Gottreich and Robert Grace (collectively trial counsel). The parties stipulated that a medical examiner would testify that McWright died of a close-range gunshot wound.
¶ 4 The evidence showed that, on September 25, 2007, defendant, his girlfriend, and their two children lived on the second floor of a two-flat building on the 1400 block of North Laramie Avenue, in Chicago. McWright lived on the first floor and performed maintenance in the building. The hot water heaters were in the basement.
¶ 5 Lee Johnson testified he was across the street from the building that evening and saw defendant shoot McWright on the porch at point-blank range. Reginald Brown and James Mitchell testified they were with Johnson and heard a popping sound. Brown added that he turned and saw McWright fall against the porch railing and defendant go inside.
¶ 6 Firefighter Dennis Scates testified that he responded to the shooting, and McWright stated that he "went to work on a hot water heater, and [defendant] came down and said, I'm tired of this s***, and he shot me." On cross-examination, Scates further testified that McWright stated he went to fix defendant's hot water heater, "went to the door," and defendant "came out and shot him."
¶ 7 Chicago police officer Anthony Varchetto testified that he responded to the shooting, and McWright stated that defendant shot him, then ran inside. Varchetto accessed the building with McWright's keys. The door to defendant's apartment was shut and the officers forced entry.
¶ 8 Officers testified that they observed blood on the front porch but not inside the building. An officer recovered a revolver with one missing round from defendant's apartment.
¶ 9 The defense called Chicago police officer Rich Wilder, who testified that he responded to the shooting. McWright stated that he went to fix the hot water heater, rang the doorbell, and defendant answered the door "yelling and screaming" and shot him. On cross-examination, Wilder agreed that McWright also told him that defendant "ran back up stairs [sic]" after the shooting.
¶ 10 Defendant's girlfriend, Kenisha Meeks, testified that, on several occasions in the summer of 2007, she noticed that items in the apartment had been moved and the apartment's door would not shut properly. She feared someone had been inside. Meeks discussed the incidents with defendant and had her brother change the locks. On cross-examination, Meeks testified that she did not remember what items had been moved, nothing was stolen, and she never told the police.
¶ 11 Defendant's daughter, Ronisha Barnes, testified that, the night of the shooting, she, her brother, and defendant entered the apartment through the back door. Ronisha heard the front door creak as if someone were "messing" with it. She told defendant, who instructed her and her brother to enter a bedroom. Shortly thereafter, she heard a "firecracker noise," and then defendant ascending the stairs.
As defendant and his daughter share a surname, we refer to his daughter as Ronisha.
¶ 12 At a jury instructions conference following Ronisha's testimony, the court noted that defendant had submitted "I.P.I. Criminal 24-25.07," on the justified use of force to defend a dwelling. The court stated that no evidence yet supported the instruction.
¶ 13 Defendant testified that, on the night of the shooting, when Ronisha mentioned the creaking door, he retrieved a firearm and approached the door. Defendant and Ronisha thought someone might be in the apartment. The door had been closed when defendant left, but was now ajar. Frightened, defendant opened the door and observed a large man standing in the doorway, nearly inside the apartment. The man held something, and defendant shot him. The man ran downstairs, and defendant followed, realizing on the porch that it was McWright. McWright ran across the street, and defendant took his children to his mother's residence. Defendant presented himself to the police several days later.
¶ 14 On cross-examination, defendant testified that Meeks had told him she believed someone had been moving things in their apartment. Defendant obtained a firearm because someone had been picking at the locks.
¶ 15 Following the close of evidence, the court resumed the jury instructions conference. Trial counsel argued that the ajar door indicated that a tumultuous entry "or somehow a break-in" had occurred. The court denied a jury instruction on the defense of dwelling, holding that no evidence established a violent or tumultuous entry. The trial court then orally reviewed the written jury instructions provided by the defense and the State, and stated it had "pulled out" instruction "2425.07, justifiable use of force in the defense of dwelling." The record does not contain a written copy of that instruction.
¶ 16 At the close of trial, the court instructed the jury on first degree murder, second degree murder, and self-defense. The instructions indicated that, to find defendant guilty of first or second degree murder, the State was required to prove that defendant's use of force was unjustified. If the State failed to prove that beyond a reasonable doubt, the jury was to acquit defendant. If the State proved that the shooting was unjustified, but defendant proved by a preponderance of the evidence that he had an unreasonable belief that the circumstances justified his use of deadly force, the jury was to find him guilty of second degree murder. If defendant failed to prove that, the jury was to find him guilty of first degree murder. The self-defense instruction advised that deadly force is justified where one reasonably believes it is necessary to prevent imminent death or great bodily harm.
¶ 17 The jury found defendant guilty of first degree murder.
¶ 18 Trial counsel filed a motion for new trial, then an amended motion, which both asserted that the trial court erred in not tendering a jury instruction on the justified use of force to defend a dwelling. Defendant then hired attorney Tod Urban to represent him. Urban filed two amended motions for new trial, explaining that the second incorporated all the previous posttrial motions. This motion argued that the court erred in not tendering a defense of dwelling instruction as sufficient evidence supported both bases for the use of deadly force. Namely, preventing or terminating another's unlawful entry into or attack on a dwelling when (1) the entry is made or attempted in a "violent, riotous, or tumultuous manner," or (2) the defendant reasonably believes such force is necessary to prevent the commission of a felony in the dwelling. 720 ILCS 5/7-2 (West 2006). The motion noted that the trial court did not address the second basis when declining the instruction. Following a hearing, the court denied the motion, finding that it did not err in declining to give the instruction and, had it issued the instruction, no rational factfinder would have accepted the defense given the evidence that the shooting occurred outside the building.
¶ 19 Following a sentencing hearing, the court imposed 45 years' imprisonment.
¶ 20 Urban represented defendant on direct appeal, arguing, inter alia, that the trial court erred by not instructing the jury on the justified use of deadly force in defense of one's dwelling. People v. Barnes, No. 1-09-1535 (2010) (unpublished order under Illinois Supreme Court Rule 23). We affirmed, holding that the trial court did not err in declining to issue the instruction based on violent or tumultuous entry as no evidence showed an entry occurred. Id. slip order at 8-9. We also found defendant forfeited his argument that the court should have instructed the jury regarding the justified use of deadly force to prevent the commission of a felony in defendant's dwelling. Id. slip order at 9. Trial counsel had not argued for the instruction below, and, on appeal, defendant did not request plain-error review or argue that trial counsel was ineffective for failing to argue for the instruction on that basis. Id.
¶ 21 On August 30, 2011, through new counsel, defendant filed a petition for relief under the Act. Defendant alleged that trial counsel was ineffective for failing to proffer a jury instruction for defense of dwelling based on a belief that deadly force was necessary to prevent the commission of a felony in the dwelling. He also argued Urban was ineffective for failing to argue on direct appeal that trial counsel was ineffective or that the omission of the instruction was plain error.
¶ 22 The circuit court dismissed the petition at the first stage, finding that defendant could not establish prejudice where the jury rejected his claim of self-defense and "believed the State's version of events." We reversed and remanded for second-stage proceedings, concluding that the circuit court made" 'a speculative attempt to reconstruct the jury's deliberations and divine its unexpressed conclusions.'" People v. Barnes, 2013 IL App (1st) 120057-U, ¶ 22 (quoting People v. Mack, 167 Ill.2d 525, 536-37 (1995)). We further stated that trial counsel "did not offer an instruction about the justified use of force to prevent the commission of a felony in one's dwelling, " although the trial evidence warranted it. Id. ¶¶ 11, 22. Thus, we found that the reviewing court arguably might have reversed defendant's conviction had Urban overcome the forfeiture of the issue on direct appeal by raising trial counsel's ineffective assistance on the issue or plain error. Id. ¶¶ 21-22.
¶ 23 On remand, the petition ultimately advanced to a third-stage evidentiary hearing on defendant's claim of ineffective assistance of counsel on direct appeal.
¶ 24 At the hearing, Gottreich testified that he tendered or proposed a jury instruction to the trial court on the use of deadly force to defend a dwelling, but did not remember whether the instruction was based on a tumultuous or riotous entry, on the prevention of a felony, or on both bases. The evidence supported both bases, and there was no reason he would not have tendered an instruction on both bases. Gottreich noted that there "was an oral conference *** in the back, and then [the trial court] summarized that conference on the record," and he could not recall what he said in the off-the-record conference.
¶ 25 On cross-examination, Gottreich confirmed that the trial court did not discuss the second basis of defense of dwelling when summarizing the instructions conference. Trial counsel's amended posttrial motion claimed error on both bases.
¶ 26 Urban testified that, to preserve an issue for appeal, an attorney must raise the issue in a motion for a new trial. If an appellate attorney believes a meritorious issue was not preserved in the trial court "either by an objection at trial or by listing it in your motion for a new trial," the appellate attorney must invoke the plain-error doctrine or argue that trial counsel was ineffective.
¶ 27 Urban confirmed he did not raise the plain-error doctrine or ineffective assistance of trial counsel in the portions of the opening and reply briefs that he prepared on direct appeal concerning the defense of dwelling instruction. He acknowledged that the State asserted in its brief that defendant had forfeited any argument relating to the instruction premised on preventing a felony in the dwelling because trial counsel only tendered an instruction relating to violent or tumultuous entry. The State's brief further asserted that the plain-error doctrine was not "fairly invoked here," and "despite [defendant's] claim on appeal" that the defense tendered an instruction for the second basis, it was absent from the record on appeal. Urban did not request plain-error review in his reply brief, and believed that it could not be invoked for the first time in a reply brief.
¶ 28 On cross-examination, Urban agreed that he did not raise plain error because, after reading the record and discussing the trial with Gottreich, he "saw the issue as one of trial court error." He believed trial counsel offered the instruction to the trial court, and thus thought ineffective assistance of trial counsel was not a viable issue. On redirect examination, Urban confirmed that he believed evidence supported an instruction regarding defense of dwelling to prevent a felony. Postconviction counsel asked whether Urban believed trial counsel had tendered the instruction, and the following colloquy occurred:
"A: I don't remember everything about this case so I mean that is my belief. I could be wrong.
Q: Did you ever see you [sic] an instruction that was tendered in this regard?
A: I think so.
Q: You think you did see a written instruction.
A: No, I take that back. There was no written instruction. It was discussion by Mr. Gottreich.
Q: Then how could the issue have been properly preserved for appeal in the trial court?
A: Based on the judge's finding about the non-violent entry it didn't really seem like a viable issue to me, and that's just me. I could be wrong, but that was my opinion.
Q: But there was no instruction in the record and there was no discussion regarding the second prong, is that correct?
A: Yes. It seems that the discussions may have been had outside the record."
¶ 29 Postconviction counsel further asked why Urban did not attempt to supplement the appellate record with the instruction, and Urban answered:
"[A]lthough the instruction was talked about, now that you say this, there was not one tendered, there was nothing to put in. I mean how can you amend that when it hasn't been tendered. Now I'm going to put in an instruction that no one offered on the record at least. You can't do that."
¶ 30 On recross examination, Urban confirmed that during the instruction conference, the trial judge stated that she "pulled out" instruction "24-25.07, justifiable use of force in the defense of dwelling." On further redirect, Urban acknowledged that he did not know whether the instruction the trial court referenced included both prongs.
¶ 31 On May 13, 2019, the circuit court denied defendant's petition. The court first found that, based on the record and Gottreich's testimony, defendant had not shown that the jury instruction on the defense of dwelling that trial counsel tendered omitted the basis on the use of deadly force to prevent a felony in a dwelling. Had trial counsel only tendered an instruction encompassing the first basis, the "experience [d]" trial judge would still have considered whether the second basis was appropriate. The circuit court concluded that the trial court did not err in denying the instruction that trial counsel offered and that any failure by Urban to overcome the forfeiture of the issue did not prejudice defendant.
¶ 32 Defendant now appeals, arguing that the evidence at trial supported the instruction on defense of dwelling to prevent a felony, and Urban was ineffective for not alleging plain error or ineffective assistance of trial counsel when the issue was not preserved on the record for direct appeal. According to defendant, had Urban done so, we would have likely reversed defendant's conviction on direct appeal, and the circuit court therefore erred in denying his postconviction petition.
¶ 33 The Act provides a three-stage process for adjudicating allegations that a defendant suffered a substantial denial of his constitutional rights during the proceedings which resulted in his conviction. 725 ILCS 5/122-1 et seq. (West 2010); People v. Hodges, 234 Ill.2d 1, 10 (2009). The Act is a collateral attack on a final judgment, not a substitute for direct appeal. People v. Edwards, 2012 IL 111711, ¶ 21. If a petition advances to the third stage for an evidentiary hearing, the defendant must establish by a preponderance of the evidence that he suffered a substantial deprivation of his constitutional rights. People v. Coleman, 2013 IL 113307, ¶ 92. At the third stage, the court is not obligated to presume that the defendant's allegations are true. People v. Gacho, 2016 IL App (1st) 133492, ¶ 13.
¶ 34 The parties dispute the standard of review. The State requests review for manifest error. See, e.g., People v. Coleman, 206 Ill.2d 261, 277 (2002) (following third-stage evidentiary hearing, "the circuit court's decision will not be disturbed unless it is manifestly erroneous"). "Manifest error is that which is 'clearly evident, plain, and indisputable.'" Gacho, 2016 IL App (1st) 133492, ¶ 15 (quoting People v. Ruiz, 177 Ill.2d 368, 384-85 (1997)). Defendant, however, argues for de novo review, contending the circuit court was not required to make factual findings or credibility determinations because Gottreich did not testify that trial counsel tendered a jury instruction based on defense of dwelling to prevent a felony. See, e.g., People v. Pendleton, 223 Ill.2d 458, 473 (2006) (third-stage denials reviewed de novo if no new evidence was presented, issues were purely questions of law, and circuit court lacked "special expertise or familiarity" with defendant's trial or sentencing (internal quotation marks omitted)).
¶ 35 In denying defendant's petition, the circuit court considered the record and Gottreich's testimony and found that defendant had not proven trial counsel failed to tender an instruction encompassing both bases for the defense of dwelling. Nevertheless, even in a third stage context, claims of ineffective assistance generally involve a mixed question of law and fact. People v. Velasco, 2018 IL App (1st) 161683, ¶ 137. As such, we will disturb the circuit court's factual findings only if they are against the manifest weight of the evidence, but review de novo the ultimate determination of whether Urban provided ineffective assistance. Id.
¶ 36 As noted, the circuit court determined that, based in part on testimony adduced at the evidentiary hearing, defendant failed to establish that trial counsel had not tendered an instruction on defense of dwelling to prevent a felony. At the hearing, Urban testified that he believed trial counsel had tendered an instruction encompassing both bases of justified use of deadly force in defense of a dwelling. He admitted, however, that he had not seen the written instruction, if it existed, and the record contained no discussion of the defense of dwelling to prevent a felony.
¶ 37 Thus, Urban's testimony shows that, at the time he prepared defendant's brief on appeal, the record did not support that the instruction issue was preserved for review. Likewise, our prior orders state that the issue was forfeited on direct appeal. See Barnes, No. 1-09-1535, slip order at 9; Barnes, 2013 IL App (1st) 120057-U, ¶ 17. It may be that trial counsel did tender the instruction outside the record. But the question before us is whether Urban rendered ineffective assistance by raising an issue on direct appeal which he testified was not preserved in the record, without asserting that the trial court committed plain error or that trial counsel was ineffective. People v. English, 2013 IL 112890, ¶ 34 (noting a court should weigh the circumstances in which an attorney was operating when assessing the attorney's performance).
¶ 38 To succeed on a claim of ineffective assistance, a defendant must show that" 'counsel's representation fell below an objective standard of reasonableness, '" and that he was prejudiced, "such that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Velasco, 2018 IL App (1st) 161683, ¶ 138 (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. The failure to establish either prong precludes a finding of ineffective assistance. People v. Cherry, 2016 IL 118728, ¶ 24.
¶ 39 Thus, to establish that Urban was ineffective on direct appeal, defendant must show that his performance was deficient and, but for his error, there is a reasonable probability that the appeal would have succeeded. English, 2013 IL 112890, ¶ 33. Appellate counsel is not deficient for failing to raise issues that counsel reasonably determines lack merit. Id. ¶ 34. Again, Urban's performance must be assessed with an eye towards the circumstances at the time of his conduct. Id.
¶ 40 We conclude that defendant has established that Urban provided ineffective assistance on direct appeal by not arguing that the trial court committed plain error in failing to instruct the jury on the justified use of deadly force to prevent a felony in his dwelling.
¶ 41 Urban's failure to assert that the court committed plain error in not issuing the instruction prejudiced defendant. See In re Edgar C, 2014 IL App (1st) 141703, ¶ 79 (reviewing court may analyze Strickland prongs in any order). "Generally, a defendant forfeits review of any putative jury instruction error if the defendant does not object to the instruction or offer an alternative instruction at trial and does not raise the instruction issue in a posttrial motion." People v. Herron, 215 Ill.2d 167, 175 (2005); see also Ill. S.Ct. R. 366(b)(2)(i) (eff. Feb. 1, 1994) (no party may raise on appeal the failure to give a jury instruction unless the party tendered it to the trial court). However, "substantial defects" in jury instructions "are not waived by failure to make timely objections thereto if the interests of justice require." Ill. S.Ct. R. 451(c) (eff. July 1, 2006). That rule operates "coextensive[ly]" with the plain error clause of Rule 615(a) (Ill. S.Ct. R. 615(a) (eff Jan. 1, 1967)) to "permit correction of grave errors and errors in cases so factually close that fundamental fairness requires that the jury be properly instructed." People v. Sargent, 239 Ill.2d 166, 189 (2010).
¶ 42 Under the plain-error doctrine, a reviewing court may consider an unpreserved error when a clear or obvious error occurred and (1) "the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant," or (2) "the error is so serious that it affected the fairness of the defendant's trial and the integrity of the judicial process, regardless of the closeness of the evidence." People v. Jones, 2016 IL 119391, ¶ 10.
¶ 43 When reviewing for plain error, the reviewing court first considers whether error occurred. Id. We review de novo whether jury instructions accurately stated the applicable law. People v. Getter, 2015 IL App (1st) 121307, ¶ 36. A defendant is entitled to a jury instruction so long as "some evidence" supports the defense. (Internal quotation marks omitted.) People v. Snowden, 2011 IL App (1st) 092117, ¶ 80.
¶ 44 Article 7 of the Criminal Code of 1961 (Code) provides justifications for the use of force. The defense of dwelling statute provides:
" (a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other's
unlawful entry into or attack upon a dwelling. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent, riotous, or tumultuous manner, and he reasonably believes that such force is necessary to prevent an assault upon, or offer of personal violence to, him or another then in the dwelling, or
(2) He reasonably believes that such force is necessary to prevent the commission of a felony in the dwelling." 720 ILCS 5/7-2 (West 2006).
¶ 45 The relevant pattern jury instruction, Illinois Pattern Jury Instruction, Criminal, No. 24- 25.07 (2d ed. 1981), repeats the statute's substance.
¶ 46 In this case, Meeks testified that she had her brother change the locks because she feared that someone had been in the apartment and moved items. Ronisha testified that on the night of the shooting, she heard the door creak as if someone were "messing" with it. Defendant testified that he suspected someone had picked the locks, the front door was ajar, McWright stood in front of it holding something, and defendant was fearful. Scates testified that McWright stated he approached the door. That evidence was sufficient to warrant a jury instruction on defense of dwelling to prevent a felony, as we noted when remanding defendant's petition for second-stage proceedings. See Barnes, 2013 IL App (1st) 120057-U, ¶ 21. Thus, it was error for the trial court not to issue the instruction. Snowden, 2011 IL App (1st) 092117, ¶ 80 (defendant entitled to instruction if "some evidence" supported defense (internal quotation marks omitted)).
¶ 47 As an error occurred, we turn now to whether Urban could have established either of the plain-error prongs. We find second-prong plain error here.
¶ 48 To establish second-prong plain error based on the omission of a jury instruction, the defendant "must establish that there was a 'serious risk that the jurors incorrectly convicted the defendant because they did not understand the applicable law.'" Getter, 2015 IL App (1st) 121307, ¶ 62 (quoting Sargent, 239 Ill.2d at 191). The defendant need not prove beyond doubt that the jury convicted him because of the omitted instruction, but must show that the omitted instruction "created a 'severe threat to the fairness of [his] trial.'" Id. (quoting People v. Hopp, 209 Ill.2d 1, 12 (2004)). We evaluate the jury instructions as a whole to determine whether they "fairly, fully, and comprehensively apprised the jury of the relevant legal principles." People v. Parker, 223 Ill.2d 494, 501 (2006). Fundamental fairness requires the jury be instructed on the "principal contested issue." Hopp, 209 Ill.2d at 8 (citing People v. Ogunsola, 87 Ill.2d 216, 223 (1981)). Under the second plain-error prong, we presume that the defendant suffered prejudice. Sargent, 239 Ill.2d at 190-91.
¶ 49 As defendant did not contest that he shot McWright, the issue at trial was whether the shooting was justified. The court instructed the jury that, to prove defendant guilty of first degree murder, the State had to establish beyond a reasonable doubt that he was unjustified in performing the act which killed McWright. See 720 ILCS 5/9-1 (a) (West 2006) (first degree murder requires performing act which causes death "without lawful justification"). If the State established that defendant's conduct was unjustified, the jury was to consider whether defendant established by a preponderance of the evidence that a mitigating factor made him guilty of second degree murder instead of first degree murder. 720 ILCS 5/9-2(a), (c) (West 2006). Here, the jury was to consider whether defendant believed deadly force was justified, but his belief was unreasonable. See 720 ILCS 5/9-2(a) (2) (West 2006) (a person commits second degree murder when he commits first degree murder but unreasonably believes the circumstances justified the killing under Article 7 of the Code).
¶ 50 The only justification under Article 7 of the Code that the court instructed the jury to consider was self-defense. See 720 ILCS 5/7-1(a) (West 2006) (use of force justified when and to the extent a person reasonably believes it necessary to defend against another's imminent use of unlawful force; use of deadly force justified when person reasonably believes it necessary to prevent imminent death or great bodily harm). To establish self-defense, a defendant must present evidence that (1) unlawful force was threatened against a person, (2) the person threatened was not the aggressor, (3) there was an imminent danger of harm, (4) the use of force was necessary, (5) the person actually and subjectively believed a danger existed requiring the use of force applied, and (6) the person's belief was objectively reasonable. People v. Gray, 2017 IL 120958, ¶ 50. If the State negates any of the elements, the jury must find the defendant guilty of first or second degree murder. People v. Jeffries, 164 Ill.2d 104, 128 (1995).
¶ 51 Therefore, the instructions tasked the jury with considering whether the shooting was justified because defendant reasonably believed deadly force was necessary to defend against an imminent danger of death or great bodily harm, or mitigated to second degree murder because defendant unreasonably so believed. However, as the court did not provide an instruction on the defense of dwelling justification set forth in Article 7, the jury did not consider whether the shooting was justified or mitigated based on the defense of dwelling. The jury was not apprised of the legal principles that they should (1) acquit defendant if the State failed to prove that his conduct was unjustified to prevent the commission of a felony within his dwelling, or (2) find defendant guilty of second degree murder if he unreasonably believed that shooting McWright was necessary to prevent a felony within his dwelling. See 720 ILCS 5/7-2 (a)(2), 9-2 (a) (2), (c) (West 2006).
¶ 52 The jury instructions were therefore inadequate, as there was evidence that defendant acted in defense of dwelling. See Parker, 223 Ill.2d at 501 (instructions must "fairly, fully, and comprehensively" apprise jury of the relevant legal principles). Indeed, given that McWright was unarmed and Meeks and defendant feared break-ins, there was more evidence supporting the defense of dwelling than self-defense. See Hopp, 209 Ill.2d at 8 (fundamental fairness requires jury be instructed on "principal contested issue" (citing Ogunsola, 87 Ill.2d at 223)).
¶ 53 The State argues that the jury was comprehensively advised of the relevant legal principles as the court instructed it as to self-defense and second degree murder. According to the State, the same facts which led the jury to conclude that defendant did not believe that deadly force was necessary to prevent imminent death or great bodily harm would lead the jury to conclude that he did not believe deadly force was necessary to prevent the commission of a felony in his dwelling. But, "[d]efense of dwelling differs from self-defense in that, unlike self-defense, defense of a dwelling does not require danger to life or great bodily harm in order to invoke the right to kill." (Internal quotation marks omitted.) People v. Sawyer, 115 Ill.2d 184, 193 (1986). The self-defense instruction therefore did not apprise the jury of the principles of defense of dwelling to prevent a felony.
¶ 54 Thus, defendant has shown that the court's failure to instruct the jury on the justified use of deadly force to prevent a felony in his dwelling severely threatened the fairness of his trial. See Sargent, 239 Ill.2d at 190-91 (under second plain-error prong, prejudice is presumed); Hopp, 209 Ill.2d at 12 (defendant must prove that error severely threatened the trial's fairness, not prove beyond doubt that the omitted instruction misled the jury into conviction). Accordingly, as prejudice is presumed under the second plain-error prong, for purposes of defendant's claim of ineffective assistance of appellate counsel, a reasonable probability exists that the result of defendant's direct appeal would have been different had Urban advanced a second-prong plain error argument. Defendant has therefore satisfied the prejudice prong of his ineffective assistance of appellate counsel claim. Strickland, 466 U.S. at 694.
¶ 55 Turning to the deficient performance prong of the Strickland ineffective assistance of counsel test, we must next decide whether, in the context of the direct appeal, Urban's failure to raise a second-prong plain error argument was objectively unreasonable. English, 2013 IL 112890, ¶ 34 (a fair assessment of attorney performance requires reconstruction of the circumstances of the challenged conduct); see also Cherry, 2016 IL 118728, ¶ 24 (recognizing that a defendant must establish both Strickland prongs).
¶ 56 Urban evidently believed the trial court should have instructed the jury on the use of deadly force to prevent a felony in a dwelling, as he raised the issue on direct appeal. As noted, his testimony at the evidentiary hearing reflects that he believed trial counsel tendered the instruction. However, his testimony further indicated he was aware that trial counsel did not tender the instruction on the record. Thus, although Urban believed trial counsel tendered the instruction, he was aware that his belief was unsupported by the record.
¶ 57 Further, when the State raised the instruction issue's forfeiture in its brief on appeal, Urban failed to request plain-error review. Although Urban testified that plain error could not be asserted for the first time in a reply brief, he was incorrect. See People v. Williams, 193 Ill.2d 306, 347-48 (2000) (plain error can be first raised in a reply brief). Urban's failure to invoke the plain-error doctrine, despite believing that the instruction issue had merit and having been notified it had arguably not been preserved, was objectively unreasonable. See People v. Patterson, 192 Ill.2d 93, 121 (2000) ("We recognize that a mistake as to the law can be a basis for finding that an attorney was ineffective."); see also People v. Serrano, 286 Ill.App.3d 485, 492 (1997) (counsel provides objectively unreasonable assistance by arguing a theory but failing to take necessary steps to present theory for decision). And, as Urban could have established second-prong plain error based on the trial court's failure to give the instruction, he could not reasonably determine that raising the doctrine lacked merit. People v. Richardson, 189 Ill.2d 401, 412 (2000) ("Appellate counsel's assessment of what to raise and argue will not be questioned unless it was patently wrong.").
¶ 58 Defendant has therefore satisfied both prongs of ineffective assistance of counsel. See Strickland, 466 U.S. at 688, 694. Consequently, we reverse the circuit court's decision denying defendant's postconviction petition. See Velasco, 2018 IL App (1st) 161683, ¶ 137 (ultimate determination of whether counsel rendered ineffective assistance reviewed de novo).
¶ 59 As defendant established Urban's ineffectiveness for failing to request review under second-prong plain error, we need not determine whether Urban was ineffective for failing to assert first-prong plain error. Nor must we reach defendant's argument that Urban was ineffective for failing to argue that trial counsel was ineffective for failing to preserve the issue for direct appeal.
¶ 60 Lastly, we note that, viewing the evidence in the light most favorable to the State, a rational trier of fact could find defendant guilty where he admitted to shooting McWright at point-blank range. Double jeopardy therefore does not prevent defendant's retrial. People v. Ward, 2011 IL 108690, ¶ 50.
¶ 61 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County and remand for proceedings consistent with this order.
¶ 62 Reversed and remanded.