Where, as here, defendant alleges in a post-conviction petition that his trial counsel interfered with his right to testify at trial, the inquiry into the merit of this claim is under the two-prong test (deficient performance and prejudice) set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Hernandez, 351 Ill. App. 3d 28, 39 (2004); accord People v. Graham, 2012 IL App (1st) 102351, ¶ 49. Although defendant's right to choose whether to testify is a fundamental right, the supreme court nevertheless requires that defendant satisfy the prejudice prong of the Strickland analysis even where, as here, defendant claims that trial counsel interfered with his right to testify.
More recent cases, however, have made it clear that a defendant must allege at least arguable prejudice when claiming ineffective assistance of counsel based on trial counsel's alleged deprivation of the defendant's right to testify. See e.g., Hodges, 234 Ill. 2d at 17; and People v. Hernandez, 351 Ill. App. 3d 28, 36 (2004). ¶ 16 Turning to the merits of defendant's ineffective assistance of counsel claim, we first note that the State argues that in light of defendant's familiarity with the criminal justice system, as evidenced by his three prior felony convictions, it is incredible that he was not aware of his right to testify.
The trial judge's respect for counsel was shown by the fact that she notified counsel of her intent to question his client before doing so. After defendant's vacillating answer, defense counsel could have asked the trial court to pose additional questions or requested a break to consult with his client. This court has stated repeatedly that the burden of protecting the right to testify rests on defense counsel, not on the trial court ( e.g., People v. Hernandez, 351 Ill. App. 3d 28, 37-39 (2004); Vaughn, 354 Ill. App. 3d at 925); and the defendant has not claimed that his counsel's performance was deficient in any way. Defendant's failure to object at trial robbed the trial court of the opportunity to correct the error, and his failure to object in a posttrial motion deprived this court of the factual findings that the trial court might have made concerning the defendant's proposed testimony.
The Illinois Appellate Court concluded that petitioner was unable to establish prejudice because the evidence of his guilt was overwhelming, and the compulsion defense would not have made a difference. See People v. Hernandez, 813 N.E.2d 994, 1003 (Ill. App. 2004) (agreeing with the State's argument that defendant did not show prejudice because the evidence of his guilt was overwhelming, including that all victims identified the defendant). Petitioner's compulsion claim rings hollow because he admitted that he voluntarily drove around with his co-defendants and smoked marijuana knowing his co-defendants were armed. Additionally, the two victims identified petitioner as an intruder, and the sexual assault victim testified that she was raped by petitioner.
A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" People v. Hernandez, 351 Ill.App.3d 28, 39 (1st Dist. 2004), quoting Strickland, 466 U.S. at 694. It then stated that Hernandez could not establish that he was prejudiced by taking the stand since the evidence of his guilt was "overwhelming," explaining that:
¶ 33 Similarly failing for lack of prejudice is defendant's claim that she was denied the effective assistance of counsel based on counsel's failure to advise her of her right not to testify. See People v. Hernandez, 351 Ill.App.3d 28, 39 (2004) (affirming the dismissal of defendant's postconviction petition when he could not show he was prejudiced by trial counsel's alleged violation of his right to choose whether or not to testify). Defendant argues that," [a]bsent her testimony, the trial court would have been left with [Michael's] version of events, his 'objectionable' testimony, and his bias as a husband in the middle of a contentious divorce who was 'parsing every word' that' [trial counsel] said.'"
Further, a claim that trial counsel interfered with a defendant's right to testify may be denied on the basis that the evidence against the defendant was overwhelming. People v. Hernandez, 351 Ill. App. 3d 28, 39-40 (2004).
Thus, in contrast to the cases relied on by defendant, the record in this case does not support defendant's claim that trial counsels failed to investigate his potential witnesses, and defendant has not provided any other evidence or documentation to support his claim. Cf. People v. Hanks, 335 Ill. App. 3d 894, 899 (1st Dist. 2002) (finding affidavit from potential witness not required where the record contained factual support for defendant's claim); People v. Morris, 335 Ill. App. 3d 70, 84-85 (1st Dist. 2002) (same); see People v. Hernandez, 351 Ill. App. 3d 28, 35 (1st Dist. 2004) (the defendant, who provided his own affidavit, was not required to submit additional evidence to support his claim of ineffective assistance where the court could "easily infer" that the only other evidence he could have furnished would have been an affidavit from his attorney). ¶ 33 The Act provides that a petitioner must attach supporting documentation or explain why he is unable to do so.
See Hodges, 234 Ill. 2d at 17.¶ 14 In People v. Hernandez, 351 Ill. App. 3d 28, 32 (2004), for example, the defendant claimed he received ineffective assistance of counsel in that his trial attorney caused him to testify without discussing the decision with the defendant and informing him that he did not have to testify. The court found that the defendant could not establish prejudice in light of the testimony of three witnesses incriminating him as well as his confession.
We further note that more recent decisions have questioned the validity of Dredge. See Youngblood, 389 Ill. App. 3d at 219 (declining to follow Dredge); People v. Hernandez, 351 Ill. App. 3d 28, 34 (2009) (noting Dredge is suspect in light of our supreme court's decision in People v. Collins, 202 Ill. 2d 59, 66-69 (2002)).