People v. Rissley

Full title: THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JEFFREY D. RISSLEY…

Court: Supreme Court of Illinois

Date published: Mar 15, 2001

No. 82536 - Agenda 3 - November 1998 (Ill. Mar. 15, 2001)

Opinion

No. 82536 — Agenda 3 — November 1998.

Opinion filed March 15, 2001.

JUSTICE FREEMAN delivered the opinion of the court:

Defendant, Jeffrey Rissley, pled guilty in the circuit court of Bureau County to the aggravated kidnapping and murder of Kahla Lansing. At his sentencing hearing, a jury found defendant eligible for the death penalty and concluded that there were no mitigating factors sufficient to preclude imposition of the death penalty. Accordingly, the trial judge sentenced defendant to death on the charge of murder and to a term of 15 years' imprisonment on the charge of aggravated kidnapping. On direct appeal, this court affirmed defendant's convictions and sentence. People v. Rissley, 165 Ill.2d 364 (1995). The United States Supreme Court denied certiorari. Rissley v. Illinois, 516 U.S. 992, 133 L.Ed.2d 432, 116 S.Ct. 525 (1995).

In October 1995, defendant filed a pro se post-conviction petition pursuant to the Post-Conviction Hearing Act ( 725 ILCS 5/122-1 et seq. (West 1994)). The court appointed counsel to assist defendant, and counsel filed an amended petition on March 1, 1996. Defendant claimed his conviction and sentence had to be reversed because he did not receive a fitness hearing and because he received ineffective assistance of counsel.

The State moved to dismiss the petition as time-barred. Defendant argued that his petition had been timely filed, and argued in the alternative that if his petition was not timely, his delay was not due to his culpable negligence. Specifically, defendant contended that he had relied on the advice of his appellate counsel on direct appeal, who informed him that he had three years from the date of his sentencing to file a post-conviction petition. Defendant submitted an affidavit from his appellate counsel to the effect that counsel had in fact so advised defendant. The circuit court denied the State's motion to dismiss the petition.

The State filed a second motion to dismiss the claims on the basis of waiver and res judicata. The circuit court dismissed some, but not all, of the claims without an evidentiary hearing. After a hearing, the court denied post-conviction relief on the remaining claims. Defendant appeals. 134 Ill.2d R. 651. We find that the petition should have been dismissed for failure to comply with the time period required in the Post-Conviction Hearing Act. Accordingly, we vacate the court's orders addressing the merits of the petition, reverse the court's order denying the State's motion to dismiss on timeliness grounds, and remand with directions that the circuit court grant the State's motion to dismiss.

ANALYSIS

On appeal the State renews its argument that defendant's petition should have been dismissed in its entirety on limitations grounds. Defendant responds with the same arguments he made in the circuit court, i.e., that the petition was timely or, in the alternative, that the delay was not due to his culpable negligence. The dates pertinent to the parties' arguments are as follows: this court issued its opinion affirming defendant's conviction and sentence on March 30, 1995; defendant filed for a writ of certiorari in the United States Supreme Court on August 25, 1995; defendant instituted the instant post-conviction action in early October 1995; and the Supreme Court denied defendant's petition for certiorari on November 27, 1995. Defendant, with the aid of counsel, subsequently filed an amended post-conviction petition on March 1, 1996.

Timeliness of the October Petition

Around the time that defendant filed his post-conviction petition, the legislature twice amended section 1 of the Post-Conviction Hearing Act, which governed the limitations period on the institution of post-conviction actions. Defendant refers to both an earlier and a later version of the statute in support of his arguments, but the parties agree that the controlling version of the statute is the version in effect in October 1995, when the petition was filed. See People v. Bates, 124 Ill.2d 81, 84-86 (1988). That version of the statute provided that

"No proceedings under this Article shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or issuance of the opinion from the Illinois Supreme Court or 6 months after the date of the order denying certiorari by the United States Supreme Court or the date for filing such a petition if none is filed or 3 years from the date of conviction, whichever is sooner, unless the petitioner alleges facts showing that the delay was not due to his culpable negligence." 725 ILCS 5/122-1 (West 1994).

The fundamental rule of statutory interpretation is to give effect to the intention of the legislature. We look first to the words of the statute, as the language of the statute is the best indication of the legislative intent. When the statutory language is clear, it must be given effect without resort to other tools of interpretation. It is never proper to depart from plain language by reading into a statute exceptions, limitations, or conditions which conflict with the clearly expressed legislative intent. County of Knox ex rel. Masterson v. Highlands, L.L.C., 188 Ill.2d 546, 556 (1999); People v. Woodard, 175 Ill.2d 435, 443 (1997).

Pursuant to the controlling version of the statute, the right to file a post-conviction action expired as soon as any of the listed specified time periods had elapsed. In this case, the parties agree that the first such event to transpire was the expiration of six months after the issuance of the opinion from this court affirming defendant's conviction and sentence. See 725 ILCS 5/122-1 (West 1994). This court issued its opinion affirming defendant's conviction and sentence on March 30, 1995. Six months elapsed on September 30, 1995. Defendant mailed his post-conviction petition to the clerk of the circuit court of Bureau County on October 6, 1995, and the clerk filed the petition on October 10, 1995. Both the mailing and the filing occurred more than six months after this court issued its opinion. Accordingly, the action was commenced too late.

Defendant advocates for a different interpretation of the statute. Defendant notes that prior to a July 1995 amendment the statute only barred the commencement of proceedings after the later of all of the listed events. See 725 ILCS 5/122-1 (West 1992). Indeed, the only change made to this statute by the July 1995 amendment was to change the word "later" to "sooner." See Pub. Act 88-678, eff. July 1, 1995. Defendant contends that in this prior version of the statute all of the events listed in the statute "described the termination of direct appeal." Accordingly, defendant argues, it is "obvious" that the legislature intended to create two limitations periods: six months from the end of direct appeal, or three years after conviction. Defendant urges that the post-July 1995 version of the statute, applicable to him, should be read consistently. Thus, defendant contends that the post-July 1995 version of the statute should be understood as allowing a defendant to file a post conviction until the earlier of (a) six months from the end of direct appeal, or (b) three years after conviction.

First, as previously noted, when a statute is clear and unambiguous it is improper to look beyond the plain meaning of its terms. County of Knox ex rel. Masterson, 188 Ill.2d at 556; Woodard, 175 Ill.2d at 443. Moreover, even if we were to look beyond the plain language of the statute, defendant's argument is undercut by the legislature's subsequent amendment of the statute. Effective January 1, 1996, the legislature again amended the statute, this time removing all references to the issuance of this court's opinion and to proceedings before the United States Supreme Court. Thereafter, a post-conviction proceeding had to be commenced within six months after the denial of a petition for leave to appeal or the date for filing such a petition if none was filed, or 45 days after the defendant filed his or her brief in the appeal before this court (or 45 days after the deadline for filing that brief if no brief is filed), or three years from the date of conviction, whichever occurs sooner. 725 ILCS 5/122-1 (West 1996). By this amendment, the legislature removed any doubt that post-conviction petitions must sometimes be filed before the termination of proceedings on direct appeal. Thus, defendant's appeal to legislative intent would be unconvincing even if it did not run counter to the plain language of the statute.

Defendant also contends that, if read literally, the July 1995 amendment rendered much of the section "meaningless surplusage." For instance, defendant observes that "six months after the date for filing a cert. [ sic] petition could never occur sooner than the denial of a petition for leave to appeal, or six months after the issuance of an opinion the cert. petition sought to challenge." Defendant argues that the legislature could not have intended to render superfluous the language regarding certiorari, and accordingly defendant urges us to give effect to the "true intent" of the legislature by "eliminating the 'issuance of opinion' language in construing the statute."

Defendant bases his argument on the rule that statutes should be construed, if possible, so that no term is rendered superfluous or meaningless. Bonaguro v. County Officers Electoral Board, 158 Ill.2d 391, 397 (1994). However, defendant overlooks the fact that his suggested interpretation of the statute breaks the very rule of construction upon which he relies, as defendant would have us affirmatively ignore the "issuance of opinion" clause. Accordingly, this argument is not convincing.

We find no reason to ignore the clear and unambiguous language of the statute. By its July 1995 amendment to the statute, the legislature clearly intended that thenceforth the right to file a post-conviction petition would expire upon the occurrence of the first of any of the listed events. One such event is the passage of six months after the issuance of the opinion by this court. In this case, this court issued its opinion on direct appeal on March 30, 1995. Defendant did not commence proceedings under the Post-Conviction Hearing Act until more than six months had elapsed after March 30, 1995. Accordingly, by the plain language of the statute, his petition was untimely.

Lack of Culpable Negligence

Defendant next argues that if this court were to hold that defendant's petition was untimely, we should still affirm the circuit court's determination that the delay was not due to defendant's culpable negligence. In his petition, defendant alleged that he filed his post-conviction petition in October, even though the Supreme Court had not yet then ruled on his petition for certiorari, "due to the change in the law, which, beginning on July 1, 1995, requires that a Post-Conviction Petition be filed within three years of the imposition of the death penalty or within six months of the denial by the United States Supreme court of a Petition for Writ of Certiorari, whichever is sooner."

In response to the State's motion to dismiss the petition, defendant alleged that when the legislature amended the statute in July 1995 his appellate counsel on direct appeal contacted him and advised him that if he wished to institute post-conviction proceedings he would now have to do so within three years after his conviction. Defendant attached an affidavit by his direct appeal counsel to his response to the State's motion to dismiss. In the affidavit, counsel stated that when the legislature amended the statute in July 1995 he so notified all of his incarcerated clients, including defendant. Counsel further averred that he advised defendant that he could not wait until certiorari was denied, but would have to file his post-conviction petition within three years of his October 1992 sentencing. Counsel averred that he did not at any time advise defendant that there was any relevance to the date that this court's opinion on direct appeal was filed. Counsel also stated that his office — the supreme court unit of the office of the State Appellate Defender — assisted defendant in filing his October 1995 pro se petition.

The trial court found that defendant had made a good-faith effort to comply with the statutory requirements, and the delay was caused by defendant's reliance on the advice of his appellate counsel. The court found that because of this reliance the delay was not due to defendant's culpable negligence.

Ordinarily we will reverse a trial court's determination whether delay was due to a defendant's culpable negligence only if that determination is manifestly erroneous. People v. Caballero, 179 Ill.2d 205, 214 (1997); People v. Van Hee, 305 Ill. App.3d 333, 336 (1999). In this case, however, the reason that the trial court's ruling must be reversed is not because of any fact finding or inferences from the evidence. The State does not argue that the court erred in finding that defendant relied on the advice of appellate counsel. Rather, the question is whether, assuming that defendant did rely on appellate counsel, as the trial court found, the court reached the correct legal conclusion that the delay was not occasioned by defendant's culpable negligence. Accordingly, the correct standard of review is de novo. People v. Woods, 306 Ill. App.3d 1144, 1146 (1999) ("[t]he ultimate question regarding the sufficiency of the allegations contained in a post-conviction petition merits treatment as a legal inquiry requiring plenary appellate review"); People v. Perry, 293 Ill. App.3d 113, 115 (1997) (applying de novo standard of review in determining whether allegations in post-conviction petition, taken as true, were sufficient to establish a lack of culpable negligence). See also Kleinwort Benson North America, Inc. v. Quantum Financial Services, Inc., 181 Ill.2d 214, 218 (1998) (where there are no factual questions to be reviewed, and the only questions on appeal concern the application of the law to undisputed facts, the correct standard of review is de novo); Branson v. Department of Revenue, 168 Ill.2d 247, 264-65 (1995) (issues of law are reviewed de novo, while issues of fact are reviewed deferentially). We find the court erred in its application of the law to the facts in this case.

Lack of culpable negligence is very difficult to establish. People v. Burris, 315 Ill. App.3d 615, 617 (2000); Perry, 293 Ill. App.3d at 115. Our appellate court has repeatedly held that a legal misapprehension does not constitute a sufficient basis for a finding of a lack of culpable negligence. See, e.g., People v. Mitchell, 296 Ill. App.3d 930, 934 (1998) (defendant's erroneous belief that post-conviction petition had to be heard by same judge who presided over original proceedings concerning defendant held insufficient to excuse tardy filing) (and cases cited therein). Our appellate court has specifically held that defendants have failed to establish lack of culpable negligence despite claims that they received erroneous limitations advice from their direct appeal counsel ( People v. Lee, 292 Ill. App.3d 941, 943 (1997)), from inmate law clerks ( People v. Stenson, 296 Ill. App.3d 93, 96 (1998)), and from prisoner handbooks ( Perry, 293 Ill. App.3d at 114-17). Contra People v. Davis, 312 Ill. App.3d 1117, 1119-20 (2000) (reliance on incorrect advice of direct appeal counsel regarding limitations period for filing post-conviction petition established lack of culpable negligence). This court has found insufficient grounds to excuse culpable negligence in the face of a petitioner's claims that he (1) had only a sixth-grade education and was not aware of the law regarding post-conviction proceedings; (2) was in jail and had no available funds with which to retain an attorney; (3) did not receive appointed counsel until after the statute of limitations had run; and (4) was, during his attempts to prepare a pro se petition, unable to obtain a transcript from the trial court to prepare his post-conviction petition. People v. Diefenbaugh, 40 Ill.2d 73, 75 (1968). See also People v. Montgomery, 45 Ill.2d 94, 96 (1970) (finding insufficient showing of lack of culpable negligence despite petitioner's submission of materials showing a general "condition of mental disturbance" during the time in which his post-conviction petition had to be filed).

We find additional support for our result in Coleman v. Thompson, 501 U.S. 722, 115 L.Ed.2d 640, 111 S.Ct. 2546 (1991). Coleman involved a federal habeas corpus petition. We note that this court regularly looks to Supreme Court habeas corpus case law to inform our analysis of post-conviction proceedings. See, e.g., People v. Franklin, 167 Ill.2d 1, 20-21 (1995) (adopting the "cause and prejudice" test when a post-conviction petitioner raised issues he had procedurally defaulted by not raising them on direct appeal); People v. Flores, 153 Ill.2d 264, 278-80 (1992); People v. Owens, 129 Ill.2d 303, 317-19 (1989). In Coleman, the defendant was tried and convicted of rape and murder; his conviction and death sentence were affirmed on direct appeal. He filed a petition for habeas corpus in state court, which was denied in its entirety. Defendant's appeal of this judgment was dismissed on timeliness grounds, because he filed his notice of appeal three days late. Defendant subsequently filed a federal habeas corpus petition. The lower federal courts held that defendant had defaulted all of his claims for purposes of federal habeas because of the state court dismissal of his appeal.

The Supreme Court affirmed. One of the questions presented to the Court was whether defense counsel's tardy filing of the state habeas appeal constituted "cause and prejudice" sufficient to allow the federal courts to reach the merits of his federal habeas petition. The Court held that it did not. The Court noted that there was no right to assistance of counsel in state post-conviction proceedings and, accordingly, there could be no claim of ineffective assistance of counsel in such proceedings. The Court continued by observing that "'cause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him." (Emphasis in original.) Coleman, 501 U.S. at 753, 115 L.Ed.2d at 671, 111 S.Ct. at 2566. See, e.g., Van Hee, 305 Ill. App.3d at 337 (lack of culpable negligence could be shown if record revealed that an inmate lacked a "meaningful opportunity" to prepare a post-conviction petition because of prison lockdowns); Mitchell, 296 Ill. App.3d at 933 (same). The Court explained that an attorney's "ignorance or inadvertence is not 'cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must 'bear the risk of attorney error.'" Coleman, 501 U.S. at 753, 115 L.Ed.2d at 671, 111 S.Ct. at 2566-67, quoting Murray v. Carrier, 477 U.S. 478, 488, 91 L.Ed.2d 397, 408, 106 S.Ct. 2639, 2645 (1986). The Court concluded that "in those circumstances where the State has no responsibility to ensure that the petitioner was represented by competent counsel," i.e., state post-conviction proceedings, "it is the petitioner who must bear the burden of a failure to follow state procedural rules. In the absence of a constitutional violation, the petitioner bears the risk in federal habeas for all attorney errors made in the course of the representation." Coleman, 501 U.S. at 754, 115 L.Ed.2d at 672, 111 S.Ct. at 2567.

Defendant attempts to distinguish Coleman from the instant case by observing that there were no exceptions to the state limitations period which was transgressed in Coleman. By contrast, defendant observes, the Illinois Post-Conviction Hearing Act has "create[d] a special 'safety valve'" by carving out an exception to the timeliness requirement for cases in which delay was not the result of a defendant's "culpable negligence." People v. Bates, 124 Ill.2d 81 (1988). This argument is unconvincing, because the underlying state statute was not germane to the relevant analysis in Coleman. Rather, Coleman involved federal habeas corpus analysis, which does contain a "safety valve," when a petitioner can show "cause and prejudice" for a default of a claim in state court. Specifically, the question in Coleman was whether defense counsel's error constituted "cause" for purposes of excusing a procedural default in post-conviction proceedings; in the instant case the question is whether defendant may contend that an attorney's error absolves defendant of "culpable negligence" for purposes of excusing a procedural default in post-conviction proceedings. In this case, just as in Coleman, we find that the answer should be no.

Defendant notes that Coleman "left open the question of whether an error by counsel which completely deprived a defendant of any collateral attack on his conviction might give rise to a constitutional violation." Defendant contends that if counsel's advice in this case barred any consideration of defendant's post-conviction claims, such an error would have to constitute a cognizable instance of ineffective assistance of counsel. However, this court has already addressed the argument that post-conviction counsel was ineffective for waiving a claim, in People v. Davis, 156 Ill.2d 149 (1993). There, we held that, because "post-conviction assistance of counsel is a creation of statute," a defendant "may not properly assert a claim of ineffective assistance of post-conviction counsel," notwithstanding that post-conviction counsel's failure to raise an issue resulted in a complete waiver thereof. Davis, 156 Ill.2d at 159. See also People v. Flores, 153 Ill.2d 264, 276 (1992), citing Wainwright v. Torna, 455 U.S. 586, 71 L.Ed.2d 475, 102 S.Ct. 1300 (1982) ("a petitioner cannot claim sixth amendment ineffective assistance of counsel in [post-conviction] proceedings").

Defendant's position is not improved by the fact that his appellate counsel on direct appeal, who gave him the erroneous advice, may not have been acting as his "counsel" at the time that the initial pro se post-conviction petition was filed. It is well established that "[a]ll citizens are presumptively charged with knowledge of the law." Atkins v. Parker, 472 U.S. 115, 130, 86 L.Ed.2d 81, 93, 105 S.Ct. 2520, 2529 (1985). In this case, not only was defendant presumed to be aware of the law, specifically the amendment to the Post-Conviction Hearing Act which took effect July 1, 1995, he affirmatively declared in his pro se petition that he was aware of the amendment. In the final analysis, it simply would not be fair to allow defendant in this case to avoid the effect of the time bar by claiming reliance on advice of his former counsel. Under Coleman and Davis, a post-conviction petitioner who filed an untimely petition based on the advice of then-current counsel would not be able to demonstrate a lack of culpable negligence. We see no reason to conclude that defendant in this case was less culpably negligent than a person in the above situation because the person on whose advice he relied was not then his counsel. Reliance on advice of counsel does not constitute a lack of "culpable negligence" sufficient to excuse an untimely filing of a post-conviction petition. To the extent that our appellate court's decision in Davis, 312 Ill. App.3d 1117, holds to the contrary, it is overruled.

CONCLUSION

For the reasons above stated, we reverse the circuit court's denial of the state's motion to dismiss defendant's post-conviction petition and remand with directions to dismiss defendant's petition in its entirety.

Reversed and remanded with directions.

CHIEF JUSTICE HARRISON, dissenting:

I cannot concur in the majority's ill-conceived disposition in this capital case. Although the majority analysis furnishes a convenient and superficial means of avoiding an eye-opening discussion of trial counsel's utter ineptitude, it does so by importation of an irrelevant federal standard which, ironically enough, was meant to assure deference to state courts with the competency and vision to interpret and implement their own procedural statutes and rules. The majority reaches its result without once deigning to define the term "culpable negligence" or to examine its usage and interpretation in other state contexts. An inquiry into the presence or absence of "culpable negligence," which the statute in question requires, would seem to warrant at least that much.

This court has referred to the provision "lack of culpable negligence" in this context as a "safety valve" ( People v. Bates, 124 Ill.2d 81 (1988)), and the legislature no doubt intended that the term would be so employed to mitigate the harsh consequences of what has at times seemed like an ever-changing statute of limitation. While paying lip service to legislative intent, the majority opinion effectively rewrites the statute, deleting the concept of "culpable negligence" altogether and inserting its own borrowed standard. In doing so, it renders irrelevant the petitioner's mental state and the diligence with which he pursued his post-conviction remedy; it summarily sweeps aside those who have sustained constitutionally cognizable wrongs, but lack the intelligence or assistance necessary to preserve and timely assert their claims; and it leaves without a remedy those who have reasonably relied upon the advice of counsel. Today, this court has hammered the last nail into the coffin of the culpable negligence concept and buried with it the last chance many may have for justice.

Culpable negligence is hardly a novel concept. The term appears in numerous state statutes and court rules. See 55 ILCS 5/3-12013, 3 14044 (West 1998) (Counties Code); 65 ILCS 5/10-1-40 (West 1998) (Illinois Municipal Code); 70 ILCS 1210/30 (West 1998) (Park System Civil Service Act); 70 ILCS 1215/33 (West 1998) (Park Annuity and Benefit Fund Civil Service Act); 70 ILCS 2605/4.33 (West 1998) (Metropolitan Water Reclamation District Act); 110 ILCS 70/46 (West 1998) (State Universities Civil Service Act); 725 ILCS 5/122-1(c) (West 1998) (Post-Conviction Hearing Act); 750 ILCS 50/5 (West 1998) (Adoption Act); 134 Ill.2d R. 606(c) (Supreme Court Rule 606(c)). Thus, it might behoove us to take a few moments to consider what the legislature means when it uses the term.

Culpable negligence has been defined as"[n]egligent conduct that, while not intentional, involves a disregard of the consequences likely to result from one's actions." Black's Law Dictionary 1056 (7th ed. 1999). Alternatively, culpable negligence has been described as "something more than negligence" involving "an indifference to, or disregard of, consequences." 65 C.J.S. Negligence § 19 (2000). Our Illinois court opinions, and legislative usage, indicate that culpable negligence is commonly understood and employed in a manner consistent with these definitions.

In People v. Wilson, 143 Ill.2d 236, 248 (1991), this court implicitly equated culpable negligence with recklessness. In Wilson, this court cited with approval an opinion of the highest court of the State of New York describing culpable negligence as a "'conscious choice of a course of action, in disregard of the consequences'" that might follow. Wilson, 143 Ill.2d at 248, quoting People v. Decina, 2 N.Y.2d 133, 140, 138 N.E.2d 799, 803-04, 157 N.Y.S.2d 558, 565 (1956). Section 5 of the Adoption Act allows for late filing of a petition, by leave of court, upon a showing that the delay "was not due to the petitioners' culpable negligence or their wilful disregard of the provisions of this Section." (Emphasis added.) 750 ILCS 50/5 (West 1998). In considering a petition under section 2-1401 of the Code of Civil Procedure ( 735 ILCS 5/2-1401 (West 1998)) courts have been routinely called upon to determine whether litigants have exercised due diligence or, conversely, have willfully disregarded the process of the court or were so indifferent to it that they should be chargeable with culpable negligence. See Pronto Two Ltd. v. Tishman Speyer Monroe Venture, 274 Ill. App.3d 624, 629 (1995); Klein v. Steel City National Bank, 212 Ill. App.3d 629, 638 (1991); Cunningham v. Miller's General Insurance Co., 188 Ill. App.3d 689, 694 (1989); Verson Allsteel Press Co. v. Mackworth Rees, Division of Avis Industrial, Inc., 99 Ill. App.3d 789 (1981).

It seems clear to me that culpable negligence is commonly understood as synonymous with a willful disregard of, or conscious indifference to, consequences likely to follow. Obviously, the defendant in this case was not guilty of culpable negligence when he relied upon the advice and expertise of a highly respected attorney who assisted him in the preparation and filing of his post-conviction petition, but filed a mere six days too late. Add to these circumstances the amendment of the statute in a manner that rendered parts of it meaningless surplusage and the whole ambiguous and, quite frankly, I do not see how any reasonable and impartial person could find this defendant guilty of culpable negligence. A meaningful review of the facts will illustrate my point.

Against a changing statutory backdrop, the following procedural events unfolded in this case. Defendant was sentenced to death by an order entered in the circuit court on October 9, 1992. Sentencing on aggravated kidnapping took place on October 16, 1992. As a result of the appeal to this court which followed, an opinion was filed on March 30, 1995.

Defendant's initial post-conviction petition, filed in the circuit court on October 10, 1995, recites that it was mailed on October 6, 1995, by an "administrative secretary," presumably associated with the Supreme Court Unit of the Office of the State Appellate Defender, which had assisted defendant in the preparation of the petition. An affidavit of Charles Scheidel, deputy defender with that agency, acknowledges the assistance provided defendant in the preparation of his petition. Moreover, affidavits of correctional personnel in the record reflect the State Appellate Defender's continuing communication with defendant after this court affirmed his conviction on direct appeal. Visitation records indicate defendant was visited by State Appellate Defender attorneys Timothy Gabrielsen and Charles Scheidel on May 25, 1995, June 21, 1995, and October 5, 1995. The latter date is of course the day before defendant's petition was mailed. The Condemned Unit's telephone logbook from Pontiac Correctional Center indicated that defendant placed a call to Charles Scheidel on September 5, 1995, and again on October 2, 1995. According to the records office supervisor at Pontiac, defendant received mail from the Office of the State Appellate Defender on the following dates: March 31, 1995; April 20, 1995; April 21, 1995; May 30, 1995; June 1, 1995; June 3, 1995; June 9, 1995; June 24, 1995; June 27, 1995; June 28, 1995; July 5, 1995; July 19, 1995; July 28, 1995; August 26, 1995; August 31, 1995; September 2, 1995; and September 28, 1995.

As part of defendant's response to the State's motion to dismiss, the defense included the aforementioned affidavit of Charles Scheidel, indicating that Scheidel, aware of impending legislative changes to the Post-Conviction Hearing Act ( 725 ILCS 5/122-1(c)), had advised defendant that his post-conviction petition would have to be filed within three years of his October 1992 sentencing. Scheidel states, "At no time did I advise him that the date the [supreme court] opinion was filed had any significance." Scheidel in fact thought it had none. Addressing the statutory amendments in question, he observed:

"The obvious intent of the legislature was to give defendants six months from the end of direct appeal or three years from conviction, whichever came sooner. The mere filing of an opinion does not end direct appeal unless no petitions for rehearing or certiorari are filed. To interpret this statute as the State apparently has renders significant portions of it meaningless surplusage. The date for filing certiorari or denial of certiorari has to be later than the date of the [Illinois Supreme Court] opinion!"

Scheidel's evaluation as to the legislature's intent was not unreasonable given that the previous version of the statute (effective a mere three months before defendant filed) did in fact place significance on the termination of a direct appeal, and the interim version, applicable to defendant (replaced by another version after only six months), was ambiguous, containing meaningless surplusage.

Whether Scheidel was ultimately proved right or wrong by subsequent legislative action is not the issue and entirely misses the point. Whether defendant was entitled to counsel or not is equally irrelevant. The inquiry here is whether this defendant proceeded in a diligent and reasonable manner or whether he was indifferent to the post-conviction process and thus guilty of culpable negligence. I have no doubt that defendant was not culpably negligent. What more would the majority require of this defendant? Perhaps in the six months at his disposal he could have graduated from law school and acquired experience and knowledge superior to that possessed by Mr. Scheidel, who has served as defense counsel for capital defendants in this court for at least the last 20 years? Probably not.

This court has methodically taken a provision which the legislature obviously intended as a safeguard and has unabashedly rendered it a nullity. This decision represents the culmination of that effort, an assurance that no petitioner will ever demonstrate lack of culpable negligence; yet the majority continues to pay homage to the hoax that the "safety valve" has become.

Certainly others have recognized the emasculating effect of this court's decisions. In Bates, Justice Clark debunked the majority's characterization of "lack of culpable negligence" as a "safety valve," stating as follows:

"Review of the pertinent case law indicates the utter fallacy inherent in the majority's reasoning. My research failed to find even one appellate or supreme court case in which a post-conviction petition was allowed based on a 'showing that the delay was not due to * * * culpable negligence.' [Citation.]" Bates, 124 Ill.2d at 90 (Clark, J., dissenting).

More recently, in People v. Perry, 293 Ill. App.3d 113 (1997), Justice Zwick made the same observation:

"My research has not disclosed any decision in which the court found that the delay in filing a late post-conviction petition could be excused because of an absence of 'culpable negligence' by the petitioner. It seems that the courts have universally emasculated the 'absence of culpable negligence' language in the statute. Even mental illness isn't enough to justify a delay. This construction effectively nullifies the intent of the legislature as expressed in the clear statutory language." Perry, 293 Ill. App.3d at 118 (Zwick, J., dissenting).

The stark truth of the matter has not been lost on federal courts.

On at least three occasions, the United States Court of Appeals for the Seventh Circuit acknowledged, implicitly or explicitly, that no Illinois precedent existed wherein lack of culpable negligence was found so as to excuse an untimely filing. See United States ex rel. Johnson v. Gilmore, 860 F. Supp. 1291, 1294-95 (N.D.Ill. 1994), aff'd, 103 F.3d 133 (7th Cir. 1996); Jones v. Washington, 15 F.3d 671, 674 (7th Cir. 1994); Harris v. DeRobertis, 932 F.2d 619, 621-24 (7th Cir. 1991). The courts' comments were made during discussions of exhaustion of state remedies in the context of federal habeas corpus proceedings. In Jones, the United States Court of Appeals for the Seventh Circuit stated:

"[T]his court acknowledged in Harris v. DeRobertis that 'during the forty years since the provision was included, the Illinois courts have failed to produce even a single published opinion in which the court found a lack of culpable negligence.'" Jones, 15 F.3d at 674, quoting Harris, 932 F.2d at 622.

Recently, one published state opinion emerged which held a petitioner had established lack of culpable negligence in circumstances virtually indistinguishable from these. See People v. Davis, 312 Ill. App.3d 1117 (2000) (petitioner specifically alleged what his attorney told him, supported his allegations with the attorney's affidavit, and filed his post-conviction petition on the date he was advised to do so). The majority's opinion promptly and specifically overrules Davis.

Is our court system so insecure, our concept of justice so jaded, that we have to pervert our analysis in the manner of the majority opinion, ignoring the will of the legislature and the simple terminology it employs, so that we might deprive this defendant of the opportunity to have his substantive issues considered by this court? I think not.

The majority apparently believes that the disposition of this issue should be controlled by the United States Supreme Court's decision in Coleman v. Thompson, 501 U.S. 722, 115 L.Ed.2d 640, 111 S.Ct. 2546 (1991). We are not concerned — as was the Supreme Court in Coleman — with the "relationship between state procedural defaults and federal habeas review." Coleman, 501 U.S. at 729, 115 L.Ed.2d at 655, 111 S.Ct. at 2553. Justice O'Connor made clear at the outset in that case: "This is a case about federalism. It concerns the respect that federal courts owe the States and the States' procedural rules when reviewing claims of state prisoners in federal habeas corpus." Coleman, 501 U.S. at 726, 115 L.Ed.2d at 654, 111 S.Ct. at 2552. I submit that we are due no respect when we shrink from our duty to apply the plain language of our statutes, we disregard the clear voice of our legislature, and in so doing we contrive standards foreign to our proper inquiry for no apparent purpose other than to foreclose the right to review. Where in Coleman does the Court speak of culpable negligence? Where does it address the intent of our legislature? The majority states that "this court regularly looks to Supreme Court habeas corpus case law to inform our analysis of post-conviction proceedings." I submit this court has now done more than that: this court has relinquished independent analysis of this state issue to the federal government in favor the ready crutch that borrowing has become. This is surely not what Justice O'Connor had in mind. Unlike the situations presented in People v. Franklin, 167 Ill.2d 1 (1995), People v. Flores, 153 Ill.2d 264 (1992), and People v. Owens, 129 Ill.2d 303 (1989), where the "procedural default" was a failure to raise issues, the "procedural default" in this case was a failure to timely file (though the circuit court did not actually so find), a matter specifically addressed by our legislature in the statute itself and for which a standard of resolution is provided: the presence or absence of culpable negligence.

Since the facts of this case clearly establish lack of culpable negligence, as indeed the circuit court found, I will address defendant's substantive issues.

Defendant's pro se petition for post-conviction relief alleged that (1) he was denied due process and effective assistance of counsel where he was receiving "prescribed medication" at the time of his guilty plea and capital sentencing hearings, but neither the prosecution nor defense counsel moved for a fitness hearing; (2) he was denied effective assistance of counsel where trial counsel failed to investigate and introduce relevant mitigating evidence at the second stage of the capital sentencing; (3) he was denied effective assistance of counsel where appellate counsel (a) failed to challenge on direct appeal trial counsel's failure to file certificates pursuant to Supreme Court Rule 604(d), and (b) failed to raise the claim that his attorneys were conflicted in advancing and arguing his motion to withdraw guilty plea, because they were placed in a position of arguing their own incompetence; (4) he was denied effective assistance of counsel where his decision to plead guilty was premised on the false statement of one of his defense attorneys, John Hedrich, that his other counsel, J.D. Flood, concurred in the decision to plead guilty; and (5) he was denied effective assistance of counsel where his trial counsel refused to permit him to testify at the hearing on the motion to withdraw guilty plea.

Attorney John Paul Carroll was appointed to represent defendant in this post-conviction matter, and subsequently filed an amended post-conviction petition on defendant's behalf claiming, inter alia, that (1) he was denied effective assistance of counsel where one of his attorneys, John Hedrich, (a) pressured him into pleading guilty and misrepresented facts in persuading him to do so, (b) then did not testify or participate at the hearing on defendant's motion to withdraw the guilty plea, and advised defendant he could not testify; (2) he was denied effective assistance of counsel where lead counsel, John Hedrich, was told by the trial court that it would grant a motion for change of venue, if made (and, in effect, delay the trial), but Hedrich declined to make such a motion; (3) he was denied effective assistance of counsel where Hedrich filed a motion to suppress defendant's confession after defendant had already entered a plea of guilty; (4) he was denied effective assistance of counsel where his lead counsel, John Hedrich, labored under a conflict of interest after he was allegedly assaulted by Bureau County State's Attorney Marc Bernabei and Hedrich thereafter placed his own safety over the interests of his client, essentially abandoning his client, although he still remained counsel of record; and (5) he was generally denied effective assistance of counsel due to Hedrich's substandard representation, a claim supported by selected quotations of Hedrich during the course of these proceedings.

Although various comments of the circuit court make its ruling somewhat unclear and ambivalent, it appears that the court limited the evidentiary hearing to an inquiry concerning "the background of [defendant's] conversations with Mr. Hedrich prior to the plea of guilty and any testimony as to what Mr. Hedrich may have left out of the motion to vacate [the guilty plea]." In effect, the defense was allowed to inquire concerning misrepresentations which may have induced defendant to plead guilty. In the course of a rambling ruling, the ebb and flow of which detracted from any firm sense of its perimeters, the court also appears to have given the defense some leeway to present evidence on the conflict of interest issue. Among the claims ostensibly dismissed were claims relating to "change of venue, abandoning the client, and the motion to suppress."

I begin my discussion of the merits with a comprehensive review of the evidence adduced at the evidentiary hearing on defendant's post-conviction petitions, supplemented, where need be, by textual references to the record of prior proceedings in this case. In particular, I will set forth, extensively, selected comments of defendant's "lead" counsel, John Hedrich, without which there could be no genuine understanding of the attorney-client relationship in this case, of the quality of representation this capital defendant received, or of misrepresentations that may have been made to defendant. I note at the outset that much of Hedrich's testimony is highly contradictory.

John Hedrich testified regarding his role in representing defendant in this death penalty case. Hedrich, who was 61 years old when he was appointed interim public defender and assigned to represent defendant, testified that he had been a licensed attorney since 1955. He estimated that only 2% to 4% of his law practice was criminal. He described himself as a "blood and guts trial attorney."

Hedrich had been an assistant State's Attorney during a four-year period in the 1960s. He had handled primarily misdemeanors, although he claimed he had assisted on some felonies. Seeking clarification on that point, defense counsel inquired further:

"Q. During that time you never did a criminal jury by yourself, did you, ever?

A. Oh, yes, I did.

Q. You did a criminal jury by yourself?

A. Well, is paternity criminal?

Q. Well, I don't think it is, sir.

A. Well, State's Attorney prosecuted those, I did those."

Hedrich finally admitted he could recall participating in only one felony jury trial, and that as second chair. Describing the nature of his duties as assistant State's Attorney, Hedrich explained, "Judge Wampler was the State's Attorney and I did what he told me, but a lot of it was with civil with [ sic] the County Board * * *." Defense counsel then asked Hedrich:

"Q. Isn't it true, sir, that you were not qualified to represent [defendant]?

A. I, no, I don't, yes, that's true.

* * *

A. Not even close, no."

Hedrich eventually conceded that he was at the "bottom of the list" for purposes of representing a capital defendant. He had advised Kathy Austin, his paralegal, that he "certainly wasn't qualified" to represent defendant. Austin was the person who helped him "get up the motions." Hedrich acknowledged he had advised the trial court, on the record, that he was not qualified to represent defendant. Inexplicably, Hedrich later testified that he was "competent" to represent defendant.

Because he considered himself unequal to the task of representing defendant at the time he was appointed, and because he had his own law practice to attend to, Hedrich had asked the trial court for assistance and had received the court-ordered services of J.D. Flood, Grundy County public defender, who had been appointed to act as second chair to Hedrich's predecessor in the case, Mathew Maloney. It appears that Hedrich thought highly of Flood, and also saw fit to rely upon Maloney in the early stages of Hedrich's representation of defendant, as the following exchanges at a hearing on February 20, 1992, indicate:

"MR. HEDRICH: Well, what Mr. Flood has told me, and he is my senior attorney because he's the public defender and he has tried murder cases before, he wrote me a letter today and he said here's two motions in rough draft which we ought to file and then when those are disposed of, file the motion on jurisdiction. Now I didn't have time to get his reasoning, but I'm sure that J.D. Flood knows what he's talking about.

* * *

MR. HEDRICH: If the court please, I'm advised by Mr. Maloney and advised by Mr. Flood, Mr. Maloney, a very competent attorney, he has been recognized as one of the finer criminal attorneys in the circuit, Mr. Flood has been in this a lot more than I have, I will follow, I get their advice and I do it and I'll relate the advice of the State's Attorney to them and see what they say.

STATE'S ATTORNEY [Marc Bernabei]: Is Mr. Maloney participating in the defense of this case?

MR. HEDRICH: Mr. Maloney is advising me of what is in the file and, yes, well, no, he's not, well, I don't know what's going on, Marc, when I don't know I go over and ask Mr. Maloney, why did you do this, why is this here, why have you got a water bill."

As the colloquy continued, the State's Attorney and the trial court made comments which appear to be an attempt to shore up on the record what might otherwise be seen as questionable defense representation in the person of Hedrich:

"STATE'S ATTORNEY: I think that's good, I'm glad he's cooperating.

THE COURT: I think Mr. Hedrich certainly has the right to consult with Mr. Maloney as to why Mr. Maloney did certain things that he did up until the time that he withdrew from the case.

STATE'S ATTORNEY: Judge, I think it's great Mr. Maloney is doing that. That means that there is three [ sic] lawyers now representing the defendant and I think the record should reflect that.

MR. HEDRICH: No. Mr. Maloney is not.

STATE'S ATTORNEY: And I think that's good, I mean, I'm pleased to hear that.

MR. HEDRICH: I have to ask what's in the file and why it's there or why not."

The advice rendered by Maloney in the early stages of Hedrich's representation was apparently short-lived. Thereafter, his primary source of assistance was presumably J.D. Flood; however, the degree to which Hedrich actually relied upon even Flood is a matter upon which Hedrich offered contradictory testimony. When questioned at the evidentiary hearing as to whether Flood had come over to help him on the case, Hedrich responded, "Well, he didn't come over to help me, no, I talked to him on the phone."

It appears — at least from portions of Hedrich's post-conviction testimony — that he was operating on his own much of the time, notwithstanding his constant assertions that he sought the advice of those more qualified. If he did procure such assistance, it was not apparent in his courtroom presentations up to and including defendant's guilty plea. For examples, I quote at length from hearings on March 2, 1992, and May 26, 1992, respectively:

"MR. HEDRICH: I would like to advise the court that I have availed myself of research from national organizations, capital resources, also I have had offers of professors or law schools where law students do research work guided by the professors and I have had offers from other attorneys, too, to help in the research of the matter. And, of course, those people don't care about the defendant but the problem here is the constitutional questions, the Constitution, of course, is 200 years old and 100 years we'll all be dust but the people will still be reading these cases under the Constitution. I think particularly Article 3 that says the trial of all crimes shall be held in the state where the said crime has been committed.

THE COURT: Mr. Hedrich, there hasn't been any motion filed, there is nothing before me * * *.

* * *

THE COURT: The defendant is — has filed a motion requesting a continuance of this cause or in the alternative the removal of the case to the federal court or to the State of Iowa. * * * Mr. Hedrich, assuming that you can prove all of the allegations in your motion, or maybe I should say assuming that you can prove a sufficient number of the allegations in your motion to justify a conclusion that the defendant cannot receive a fair trial in Bureau County, do you have any authority which would justify this Court to remove this case to federal court?

MR. HEDRICH: No, Your Honor.

THE COURT: Do you have any authority which would justify this Court moving this case to a state court in Iowa?

MR. HEDRICH: No, Your Honor, except the State's Attorney has said that those people are standing ready to try the case in radio broadcast.

MR. BERNABEI: I object, Judge, that isn't what I said.

THE COURT: Well, I don't know — this Court doesn't know of any authority that it has to move this case to the federal court. This case was filed in the circuit court of Bureau County.

MR. HEDRICH: My understanding is only the Court can remove it.

THE COURT: I know of no authority that I have to move this case to federal court.

MR. HEDRICH: No, you're right, Your Honor.

THE COURT: That's the reason I am asking you if you know of any authority.

MR. HEDRICH: No. I think in the interest of justice, though, we ought to consider it.

THE COURT: I can't consider something that I don't have any authority to do.

MR. HEDRICH: That is correct, Your Honor.

THE COURT: Furthermore, I have no authority, that I am aware of, to move this case to a state court in Iowa, and this is the reason why I am asking if you know of any such authority.

MR. HEDRICH: No, Your Honor, I have no cases.

THE COURT: So that the only viable thing we have here is your motion for continuance."

The court, obviously concerned and befuddled, felt the need to inquire further:

"THE COURT: Let the record show that the defendant is present in open court and has been from the inception of the proceedings today.

It is my understanding that your motion, Mr. Hedrich, is not does not contain a request that I transfer this case to another county in Illinois.

MR. HEDRICH: No, Your Honor. You're correct.

THE COURT: I do have the authority to transfer this case to another county in Illinois, but only if your client requests it.

MR. HEDRICH: Yes, Your Honor.

THE COURT: I have done considerable research myself and I have come to the conclusion that I do not have the authority, sua sponte, to move this case to another county. Your client has a constitutional and legal right to have this case tried in Bureau County.

MR. HEDRICH: Yes, Your Honor.

THE COURT: Only he and you, as his attorney, can request that this case be moved to another county.

MR. HEDRICH: Yes, Your Honor.

THE COURT: If you feel that you cannot receive a fair trial in Bureau County, you can request that I move this case to another county.

MR. HEDRICH: Or that the defendant waive his right to have it tried in Bureau County.

THE COURT: Beg your pardon?

MR. HEDRICH: Yeah, the defendant can waive his right to have the case tried in Bureau County.

THE COURT: Well, he has to request —

MR. HEDRICH: Yes, I understand.

THE COURT: He has to request, through you, that his case be moved to another county.

MR. HEDRICH: Yes, Your Honor.

THE COURT: It is my understanding that you are not doing that, is that correct?

MR. HEDRICH: That's correct, Your Honor.

THE COURT: I trust that you have consulted with your client in that regard?

MR. HEDRICH: Yes, Your Honor.

THE COURT: Is that true, Mr. Rissley?

THE DEFENDANT: Yes, Sir.

THE COURT: And you do not desire that this case be moved out of Bureau County to another trial — to another county, is that correct?

THE DEFENDANT: That's correct, sir."

At that point in the proceedings, State's Attorney Bernabei evidently became concerned with the appearance the court's colloquy with Hedrich might later have in the record before a court of review, and he attempted to salvage what no doubt seemed to be a deteriorating situation:

"MR. BERNABEI: Judge, something that was said to me off the record, if you don't mind, I think should be on the record.

Mr. Hedrich has indicated on several occasions in discussions with me and even this morning that this issue of whether they should file for a change of venue, that he has discussed this with other attorneys who practice capital defense work and I I think the record should reflect that this is, apparently, a decision that was reached after some serious consultation, some study, and it appears to be a tactical strategic decision which the defendant and his attorney are knowingly and intelligently and voluntarily doing. That's my observation.

THE COURT: Is that correct, Mr. Hedrich?

MR. HEDRICH: That is correct, Your Honor, and if you want the names of record, I will say who they are.

THE COURT: I don't know that that's necessary.

MR. HEDRICH: I have consulted with law professors and attorneys."

After a two-day hearing wherein evidence of pretrial publicity was presented, the court denied Hedrich's request for relief, but again informed him that the court would grant a motion to move the trial to another county in Illinois, if Hedrich so moved. He did not.

Whatever the level of assistance Hedrich was actually offered and accepted, it appears to have translated into scant substance in Hedrich's courtroom presentations. However, Hedrich apparently had taken at least some steps toward his own edification.

Hedrich testified, at the post-conviction hearing, that he had attended one seminar, presented by the Capital Resource Center, after he was assigned to represent defendant. Hedrich said he knew people at the Capital Resource Center could give him good advice. He became acquainted with the director of that organization, Andrea Lyon, whom he considered to be an expert in the field of death penalty litigation. Hedrich stated, "I had other people I advised with also," but he admitted he did not always follow their advice. In particular, Hedrich admitted that he had pled defendant guilty after Lyon had advised him against it. Neither could he recall the more experienced Flood ever recommending a plea of guilty.

Hedrich admitted that he was not prepared to represent a capital defendant on June 11, 1992, the day he pled defendant guilty to murder in what is commonly referred to as a "blind" plea, a plea where there is no agreement as to sentence. Hedrich said he had previously spoken with the State's Attorney, who had told him there would be no deals and that the State would seek the death penalty. Hedrich thereafter advised the defendant — who, according to Hedrich, had the mind and maturity of a 12-year-old — to enter an open plea to first degree murder and aggravated kidnapping. Hedrich could not recall if he had told defendant of his conversation with the State's Attorney. He acknowledged his deposition testimony wherein he admitted he had not informed Flood or Lyon of that conversation. Later, under cross-examination, he claimed he had informed defendant of the conversation. Hedrich suggested to defendant that Lyon and Flood had concurred in the decision to plead guilty. He said there were times when defendant would ask about Lyon's position on some aspect of the case. Later, he would testify, "If Andrea Lyon had a position I would tell him [defendant], he didn't have to ask."

Hedrich stated he had advised defendant to plead guilty in order to gain more time to develop mitigating evidence and to avoid having a jury hear the evidence twice. He had not filed a motion for continuance due to lack of preparation; he was not aware, at the time of the plea, that he could have requested a bench trial for the guilt phase of the trial. He did not advise defendant that he had that option.

At the post-conviction hearing, defense counsel asked Hedrich why he had not filed a motion to suppress earlier, before the plea of guilty was entered. Hedrich responded that he was either too busy or he thought that the time for filing had passed. Counsel then asked Hedrich why he had not asked for a continuance if he had needed more time for preparation:

"Q. You never asked the judge for a continuance, did you sir?

A. I can't remember that. All I can remember is that I had about six different things to do and I had to pick out one of them.

* * *

I had six different ideas but I usually picked out the one that I thought would be the most productive."

A mere 11 days after the guilty plea was entered, Hedrich moved to withdraw the plea of guilty, alleging that defendant had entered it "without sufficient understanding" and that it was "not made knowingly or intelligently." Specifically, Hedrich claimed by affidavit attached to the motion that he "did not advise [defendant] of his right to waive a trial by jury and to ask for a bench trial, his right to preserve the issue of jurisdiction on appeal, his right to a hearing on a Motion to Suppress Statements." Hedrich stated his motion was "based on facts that do not appear on the record of the proceeding."

Hedrich's motion to withdraw the plea was filed contemporaneously with, and bore as an attached exhibit, a motion to suppress confession. The motion to withdraw the plea of guilty averred that it was "necessary to file and to litigate a Motion to Suppress Statements."

After the motion to withdraw the plea was filed, but before it was heard, an "altercation" took place in the judge's chambers between the State's Attorney and Hedrich. According to Hedrich's post-conviction testimony, the State's Attorney, Bernabei, was sitting in a chair approximately six to eight feet from him when Bernabei began to "unload" on him with "abusive language about what [Hedrich] was doing and [his] representation." Bernabei was "very upset." According to the testimony of Hedrich and at least one other witness, this had been a common occurrence during the course of Hedrich's representation of defendant. Hedrich admitted that Bernabei had previously "leaned on me a little bit about me representing the guy." On this particular occasion, Hedrich responded, "Why don't you just shut up?" Hedrich stated that Bernabei then got up out of his chair and quickly approached Hedrich. Bernabei, in Hedrich's own words, "grabbed me by the muscles, upper muscles in both arms and shook me and shouted at me." At one point in his testimony, Hedrich said he felt threatened by Bernabei's conduct; at another stage in his testimony, he said, "I was shocked, I would say, I don't know about afraid." He would later claim the incident did not affect his representation of the defendant.

Evidently, one of the other attorneys in chambers at the time of the altercation reported Bernabei to the Attorney Registration and Disciplinary Commission. In response to a telephone call from a Commission attorney, Hedrich wrote the letter identified at the post-conviction proceeding as Defendant's Exhibit No. 7. In that letter, Hedrich stated that the judge himself had to step in between Bernabei and Hedrich to terminate the violence. In his letter, Hedrich wrote:

"Mr. Bernabei went on ranting and raving and said I had raised my fist to a law enforcement officer, and I could be criminally prosecuted. He said I didn't have any sympathy for the family of the murdered girl. I assured him that I did have sympathy for the family. He said I didn't. I told him I was sixty-one years old. He said that's why he didn't hit me."

Later in the letter, Hedrich unequivocally acknowledged the effect the incident had on him: "I am intimidated and will stay as physically far away from him as possible. I can't have him beating on me."

Hedrich testified that his biceps hurt for a couple weeks after the incident, and were somewhat discolored. When he next appeared in the courtroom on behalf of defendant, at the hearing on the motion to withdraw guilty plea, he would not even sit at the defense table. He sat 10 to 15 feet away, next to the sheriff. Hedrich testified he "didn't want to get too close to him [the State's Attorney] in case he gets mad at me or something. * * * I didn't want him to shake me again, you know, you don't want to get battered twice, pretty stupid if you do that." Inquiring further, defense counsel asked, "You had, according to your testimony, seated Mr. Flood nearer to the State's Attorney so if there was going to be an assault it would be an assault on a younger man, isn't that true?" Hedrich responded, "Yes, I figured the younger the better." Hedrich said, "if there was any disagreement or something I didn't want to be in the line of fire. * * * I never wanted to do anything to offend Mr. Bernabei."

Indeed, Hedrich conceded he "made special efforts" not to offend Bernabei. He thought Bernabei "needed some psychiatric help." It was clear, even in Hedrich's post-conviction testimony, that there had been comments and intimidation which led up to the altercation in chambers, and that Hedrich was still afraid of offending Bernabei, who was seated in the courtroom while he testified. A sense of the intimidation which Hedrich felt can be gleaned from his own words. Asked how many times Bernabei had referred to his "baby killer," Hedrich answered, "thirty or forty." Hedrich stated: "I just took it as he was riding me and being abusive and I just never bothered to answer." Continuing, Hedrich explained, "I didn't want to be abusive, I didn't want to argue, the Public Defender, everybody, you know, hates the Public Defender * * * they're a necessary evil." Hedrich was hesitant and cautious when asked about Bernabei's mental state:

"Q. But you thought he [Bernabei] had a real mental problem, that's what you told me?

A. I didn't mean to say that he was insane or, I don't know what you mean by, yeah, mental problem but the mental problem was he was upset, nervous, maybe his nerves were, I'm not, I don't want to interpret it as the State's Attorney is unbalanced, well I did say unbalanced, but I mean agitated."

Although Hedrich (in his sixties) denied that Bernabei (in his forties) could have feared a battery from him, Hedrich had gone so far in his deposition testimony as to suggest that may have been the case and that Bernabei had a "duty" to shake him:

"MR. HEDRICH: I think that is what he thought. He was an officer of the court or State's Attorney and it was his duty to come over and grab me and shake me."

Before the altercation with Bernabei, Hedrich had spoken on behalf of defendant at every court appearance. After it, by his own admission, he did not speak at all. Of significance for defendant's case, Hedrich did not withdraw as counsel for defendant and take the stand to testify at the hearing on defendant's motion to withdraw his guilty plea, notwithstanding Hedrich's assertion that the facts supporting the motion did "not appear on the record of the proceeding." The off-the-record discussions between Hedrich and the defendant prior to the guilty plea were of critical importance in the disposition of the defendant's motion to withdraw the guilty plea; yet, neither Hedrich, nor the defendant, testified regarding those discussions.

At the post-conviction hearing, Hedrich testified that the defendant had wanted to withdraw his plea of guilty after he had been informed of Andrea Lyon's advice to Hedrich. Obviously, Hedrich had not conveyed that advice prior to the guilty plea. Hedrich had told defendant about Lyon, her credentials, and her success in capital litigation. At times, defendant would ask about Lyon's position regarding a certain aspect of his case.

Hedrich had also told defendant about Flood's credentials. Hedrich initially testified that he "might" have told defendant that Flood had concurred in the decision to enter a plea of guilty. At another point in the post-conviction hearing, Hedrich testified, "I told him [defendant] that J.D. [Flood] and I discussed it [the guilty plea] * * * and I thought that was our best shot at that time."

Hedrich admitted that Flood — who was in Iowa still investigating aspects of the case at the time the guilty plea was entered — did not know he was going to plead defendant guilty that day. Hedrich had sent Flood to Iowa to investigate portions of defendant's story. Hedrich admitted, among other aspects of the case, he had not completed that portion of the investigation pertaining to possible suppression of defendant's confession when the guilty plea was entered. Clearly, Flood was not aware that a guilty plea was to be entered on June 11, 1992, as Hedrich's own testimony demonstrates:

"MR. HEDRICH: Well, we discussed pleading him guilty, that's true; we discussed not pleading him guilty, that's true.

* * *

I don't think we came to a definite."

Under cross-examination by the State's Attorney, Hedrich agreed with the statement that he had entered the guilty plea due in part to a "strategic consideration" that it would get him more time to prepare in mitigation. Under subsequent examination by defense counsel, Hedrich acknowledged he could have simply asked the judge for a continuance to prepare, rather than entering an open plea of guilty to first degree murder. In May of 1992, Hedrich had filed a motion to continue in connection with his motion for change of venue due to alleged prejudicial pretrial publicity. That motion to continue, however, had nothing to do with any other issue in the case and was not premised upon lack of preparation for trial, notwithstanding State's Attorney Bernabei's suggestions to the contrary.

Whatever Hedrich's motives may have been in encouraging defendant to plead guilty, whatever advice he may have offered, the trial court was not privy to those off-the-record matters, because neither Hedrich nor defendant took the witness stand in support of his motion to withdraw defendant's guilty plea. At the hearing on defendant's post-conviction petition, Hedrich said defendant "may have asked" if he should testify at the hearing on his motion to withdraw the guilty plea. Hedrich was then confronted with his deposition testimony wherein he affirmatively stated defendant had asked to testify. In his pretrial deposition, Hedrich had stated he had advised defendant not to testify. Confronted with his deposition testimony, wherein he said he did not know why he had not put defendant on the stand in support of his motion to withdraw the plea, Hedrich answered:

"I guess, well, if I said that, I don't know why, but I make a decision, one decision at a time, a lot of times you don't have too much time to make a decision, but you have to make it one way or the other."

At one point in his testimony, more confused than was normally the case, Hedrich asked defense counsel:

"Who was in charge of that hearing? Me?

Q. You tell me, sir?

A. I can't remember, this is a hearing to withdraw the plea of guilty?

Q. Yes sir?

A. Was I in charge of that hearing or J.D. Flood? Was J.D. Flood here?

Q. Were you the lead counsel?

A. Yes.

Q. Okay. And Mr. Flood was like the second chair?

A. Yes.

Q. Would it be fair to say that you're always in charge then?

A. Yes, I guess so.

Q. Thank you. In your motion to withdraw [the guilty plea] you made certain allegations that Mr. Rissley wasn't properly explained his rights and the circumstances by you * * *. * * * [W]hy didn't you take the stand and testify as to what you put in the affidavit?

A. Because I think Mr. Flood was handling that motion."

Hedrich was then confronted with his deposition testimony, wherein he had answered, "I thought the court had all that in front of it." Defense counsel continued:

"Q. Only two human beings knew what went on, what conversation occurred when you and Mr. Rissley decided to plead guilty, isn't that true?

A. Unless they had a bug in the room.

Q. Okay. Let's assume they don't have a bug. Just two human beings, you and Mr. Rissley, isn't that true?

A. Yes.

* * *

Q. Alright. So as an attorney with thirty-seven years experience, you know some live person has to get up on the stand and testify to that, so it has to be either you or Mr. Rissley, isn't that true?

A. Yes.

Q. Okay. Both you and Mr. Rissley are in the courtroom and you're the lead attorney, isn't that true?

A. Yes.

Q. But neither you nor Mr. Rissley get on the stand, isn't that true?

A. Yes.

Q. And the judge denies the motion, isn't that true?

A. Yes."

Hedrich acknowledged that two State witnesses had taken the stand at the hearing on the motion to withdraw the plea and testified defendant had told them he did not want to withdraw his guilty plea. Although Hedrich had been apprised to the contrary by defendant, Hedrich did not withdraw as counsel for defendant and take the stand at the hearing on his motion to declare defendant's intentions as expressed to him. The hearing on the motion to withdraw defendant's guilty plea took place seven days after the incident in which Hedrich had been shaken by Bernabei.

Hedrich claimed to have forgotten about certain aspects of defendant's case by the time of the defendant's post-conviction hearing. For example, Hedrich testified he had forgotten that Andrea Lyon had even testified at the hearing on defendant's motion to withdraw his guilty plea. He had also, apparently, forgotten about a conversation he had with State's Attorney Bernabei prior to his deposition testimony:

"Q. Did Mr. Bernabei tell you to be careful of me and to what I was going to question?

A. No, he didn't say anything about you, Mr. Carroll."

Again, Hedrich was confronted with contradictory testimony from his deposition:

"Q. Mr. Bernabei talked to you about perhaps what I might want to do to you and to be careful of me?

A. Yes."

I turn now from post-conviction testimony regarding the hearing on the defendant's motion to withdraw the guilty plea to post-conviction testimony concerning the issue of suppression of defendant's confession.

Hedrich stated initially, in his direct testimony, that he had not filed a timely motion to suppress either because he was too busy or he thought that time had passed for filing. He did not at that point in the proceeding say that the filing of a motion was precluded by lack of merit. In fact, as the record demonstrates, and as Hedrich admitted under defense counsel's questioning, he eventually filed such a motion after the guilty plea. The State's Attorney objected at that juncture, stating that the court had "already dismissed the [post-conviction] claim relating to the motion to suppress." The court sustained the objection, precluding the defense from further inquiry into the subject of suppression:

"THE COURT: In fact, the court has already stricken the issue regarding the failure to file the motion to suppress. Now I understand, and I'm going to grant you some leeway, that if you're claiming he [Hedrich] was ineffective because he, remember, we're focusing in here on the guilty plea and the motion to withdraw the guilty plea. Those are the areas I told you you could get into. I realize in the big picture the fact that he filed a motion to suppress late is something you might want to mention and argue, alright. But the merits of the motion to suppress I think is [ sic] entirely inappropriate."

Notwithstanding that ruling, the post-conviction court allowed the State's Attorney to briefly examine Hedrich regarding his evaluation of the merits of the suppression issue, and extensively examine defendant on that issue. The court eventually ruled on the merits of that issue despite its insistence that the claim had been dismissed. Following is an excerpt of Hedrich's testimony regarding what he himself referred to as "that confession thing."

"STATE'S ATTORNEY: [Defendant] [n]ever gave you any reason to believe in any way, shape or form that there was anything suspect about the police activity in obtaining his confession, isn't that true?

MR. HEDRICH: I'm sure if there was any at all, I would have been right on there, right on top of it. I'm sure Mr. Maloney and J.D. [Flood], who were in ahead of me, would have told me, I'm pretty sure."

Hedrich would later concede that no one told him he could not get the confession suppressed.

Notwithstanding Hedrich's testimony on the suppression issue, he did belatedly file a motion to suppress defendant's confession, stating that the motion was "necessary." I assume he would not have filed the motion unless he thought it had some merit. As previously noted herein, Hedrich admitted that the investigation of the case, including that portion pertaining to suppression, had not been completed when the guilty plea was entered.

Despite what Hedrich characterized as an incomplete and inadequate investigation of the case, what would seem to have been little or no consultation with those assisting him in Rissley's defense, and evidence suggesting inadequate or incomplete research of important issues, Hedrich advised and persuaded defendant to enter an open plea to the charges against him. Hedrich, answering the State's Attorney's leading questions, testified that he had given defendant "good, solid, and competent" advice when he persuaded him to plead guilty, directly contradicting his earlier testimony that his client was "substantially prejudiced" by the guilty plea.

Hedrich's first co-counsel, and second chair, J.D. Flood, was called as a witness at the post-conviction hearing to recount his participation in this case. Flood was Grundy County public defender at the time he testified. He had previously served as assistant State's Attorney in Grundy County and, in that capacity, had second chaired four or five felony jury trials. While an assistant State's Attorney, he had done misdemeanor jury trials on his own. Flood had served as Grundy County public defender since April of 1985. As of 1992, when he was assigned to assist in this case, Flood had been involved in the conduct of 10 jury trials: half as lead counsel; half as second chair.

Flood testified that, in the beginning, when Hedrich was first appointed to represent defendant, Hedrich did not apprise Flood of a defense strategy or even tell Flood what Hedrich expected Flood to do. By mid-May of 1992, having received no direction from Hedrich, Flood asked Hedrich for leave to travel to Bureau County to at least familiarize himself with the court file.

In the course of conversations Flood had with Hedrich, Hedrich advised Flood that he (Hedrich) did not know what he was doing in the case. According to Flood, this happened on "many occasions." Flood remembered Hedrich twice stating as much in open court. Flood did not believe that Hedrich was a competent criminal attorney.

An additional problem was posed, in Flood's opinion, by Hedrich's concern with the conduct of the State's Attorney, Marc Bernabei. Flood testified that he had received a letter from Hedrich addressing a possible appeal of a jurisdictional issue in the case and, in that letter, Hedrich stated the State's Attorney "had said something to him about filing a contempt writ if he were to do that." Hedrich confided therein, "Mr. Bernabei intimidates me." Hedrich mentioned the intimidation he felt on other occasions as well.

Complicating matters further, as far as Flood was concerned, were the serious lapses in Hedrich's communication with Flood. For example, the defense had filed what is referred to in the record as a "jurisdictional" motion which, among other things, maintained that jurisdiction over a charge of murder was properly in the State of Iowa. According to Flood, he was not informed he would be arguing the motion prior to the hearing thereon. In Defendant's Exhibit No. 5, Flood's July 1992 motion to withdraw as defendant's attorney, Flood stated that Hedrich had twice "'dumped' the handling of" motions on him "without prior notification." Hedrich also failed to advise Flood of his discussion with the State's Attorney and ignored Flood's advice not to plead defendant guilty in an open plea. Although Hedrich had mentioned the possibility of entering a plea at some point in time, Flood had no idea that Hedrich was acting on that impulse on June 11, 1992. In fact, Flood was still conducting case investigation in Iowa when the plea was entered, and learned of the plea while listening to the radio on his way home. Flood said he would have advised defendant to go to trial if, for no other reason, than to preserve pretrial issues.

Although he had only spoken with defendant once or twice before the guilty plea, Flood immediately spoke with defendant thereafter and learned that defendant believed Flood had concurred in the decision to plead guilty. Flood took the initiative to seek withdrawal of the plea. He spoke to defendant who, he determined, "didn't really understand what was going on and the effect of what had happened." After that discussion, defendant indicated he wanted to file a motion to withdraw the plea.

While Hedrich was still lead counsel, and signed the motion to withdraw the plea as such, Flood handled the conduct of the hearing on the motion. He did not recall Hedrich having much input at the hearing. In fact, he was not sure that Hedrich even sat at counsel table. Flood's decision not to call defendant to testify was a "strategic" matter; Flood thought Andrea Lyon's testimony would carry the day. It did not.

Flood's effort to qualify Lyon as an "expert" witness in death penalty cases met with an objection from State's Attorney Bernabei:

"MR. BERNABEI: I don't think the Court needs that kind of education.

* * *

And I think its pretty inappropriate to suggest that this Court needs assistance from a lawyer to tell this Judge what is required of the lawyer or what is required in either the prosecution or defense of a case, civil or criminal.

* * *

I said I don't object to her being labeled an expert. That all of us in this business are experts presumably."

The circuit court observed, speaking to Flood:

"THE COURT: Well, she's a lawyer just like you're a lawyer and Mr. Bernabei is a lawyer. I've been — I've had forty-three years of experience as both a trial lawyer and as a judge. I think I know something about the law as well."

Objections to Lyon's testimony were later sustained, and most of Lyon's testimony was entered into the record only as an offer of proof. The defense called no other witnesses. Hedrich did not testify — or even speak. The motion was denied.

In the course of articulating its ruling, denying defendant's motion and validating the representation Hedrich had provided, the judge evidently felt compelled to again comment on his own experience as a litigator — albeit experience in a much different context:

"THE COURT: As a trial lawyer for forty years myself before I ever stepped onto the bench, on many instances, I advised clients to enter a plea of guilty or admission of liability and most of the time I was handling civil cases, but admission of liability because I felt that for me to advise them to proceed to trial when the factual basis with which they were presented was so strong, that it would weaken the penalty phase that I wanted to rely on in their defense."

After the motion to withdraw the guilty plea had been denied, Flood moved to withdraw as counsel for defendant, claiming not only his own incompetence in capital litigation, but also that of John Hedrich. The allegations of Hedrich's co-counsel warrant careful consideration as he was in the best position to observe Hedrich's conduct in defense of defendant. In his motion to withdraw as counsel, Flood stated that Hedrich did "not possess the legal knowledge, skill, thoroughness or preparation necessary for the representation of [the] defendant, by reason of the following":

"a) John Hedrich has no prior practical experience in either the prosecution or defense of a capital case;

b) John Hedrich has stated in open court on more than one occasion his lack of qualification to handle a death penalty case and has stated that he doesn't know what he is doing in the defense of this defendant;

c) That John Hedrich has failed to conduct or direct any investigation concerning facts that constitute the gravamen of the offenses charged;

d) That John Hedrich has failed to conduct or direct any investigation designed to prepare to defend aggravation or present mitigation;

e) That John Hedrich has failed to develop or communicate any theory or direction of defense despite the repeated questions of movant regarding the same;

f) That John Hedrich has sought the advice of Andrea Lyon, a recognized expert in the legal representation of capital cases, but has failed to follow the advice of Andrea Lyon;

* * *

i) That John Hedrich plead the defendant guilty without advising your movant of the date on which the plea was to be entered and in fact told your movant that the plea of guilty was going to be entered eleven days subsequent to the date on which the plea was actually entered and that at the time of the plea your movant was out of State investigating this matter and unable to prevent the entry of the plea of guilty;

j) That John Hedrich has failed to file motions as agreed upon by counsel for the defendant and that said motions have been necessary and essential for defense development;

k) That John Hedrich has filed motions with the Court and then failed to research and prepare for the hearing on said motions;

l) That John Hedrich has 'dumped' the handling of the motion contesting jurisdiction and the handling of the motions heard on June 29, 1992 on your movant without prior notification to the movant that he would be handling said motions;

m) That John Hedrich has, on prior occasions, indicated and is in fact intimidated by the Bureau County State's Attorney, Marc Bernabei[,] and has made decisions affecting the best interest of the defendant based upon the anticipated reaction of the State's Attorney as opposed to the best interests of the defendant;

n) That John Hedrich has failed to advise the defendant of the effect of his plea of guilty and has failed to keep the defendant advised of the steps taken in preparation of a defense."

Flood's motion also referred to "an inability on the part of your movant to work with his co-counsel by reason of the following":

"a) There has been no indication to your movant by lead counsel of what your movant is to perform in assisting in the defense of the defendant;

b) There has been no development, or at least no communication to your movant, of any theories or directions of the defense;

c) There has been no development or communication to your movant of the investigation plans or direction;

d) That important and fundamental defense decisions have been made and/or changed with little or no prior discussions with your movant;

e) That the efforts undertaken by your movant has [ sic], in part, been rendered less useful and less meaningful by the above, and has left your movant confused about the development and direction of the defense[.]"

Flood concluded that defendant's best interests would be served by "the withdrawal of your movant, the withdrawal of John Hedrich as lead counsel, and the appointment of counsel qualified in the defense of capital cases."

On July 8, 1992, Flood's motion to withdraw as counsel was taken up by the trial judge. Asked if he had any objection, State's Attorney Bernabei stated he had no position on the matter, but went on to voice opposition to the suggestion "that some sort of quote, unquote, expert capital defense lawyer should be appointed," noting that "all of us as attorneys practicing in the area of criminal law are qualified to do this case." Bernabei also expressed his concern that another attorney "would be appointed and paid for at the going rate as an unnecessary expense. Bernabei volunteered his opinion that defendant had received competent representation.

The trial court granted Flood leave to withdraw and, in doing so, specifically found that both Flood and Hedrich had furnished competent representation to defendant, findings unnecessary to the disposition of Flood's motion, and supported by no evidence or testimony whatsoever. The court did not inquire into the substance of any allegations concerning matters which might have occurred outside of the court's presence, and premised its ruling "solely" upon a "lack of cohesiveness between defense counsel."

Upon inquiry by the court, defendant stated his desire that another attorney be appointed to "relieve Mr. Flood." Thereupon, the court appointed Daniel Bute, a public defender of La Salle County, as additional counsel in the case. Bute, as Hedrich's co-counsel, represented defendant through the sentencing and post-trial phases of this case. Bute was later called to testify at defendant's post-conviction hearing as a State witness.

Lee Smith was called as a defense witness at the post-conviction hearing. Smith, an investigator for the Office of the State Appellate Defender, testified that he had accompanied post-conviction counsel when counsel met with John Hedrich on February 26, 1996. At that meeting, Hedrich said he had expressed to Flood on several occasions his concern that he was not qualified to handle the case. Hedrich stated one of the reasons he pled defendant guilty was to buy more time to develop mitigation, and he realized, after discussing the plea with other counsel, that the guilty plea had been a mistake. Hedrich admitted that, after the altercation with Bernabei, he felt threatened every time he was around Bernabei and he made special efforts not to offend him during the remainder of the proceedings.

Kathy Austin, a law student at the time of the post-conviction hearing, testified that she had worked for the Bureau County public defender's office in 1992 and had been involved in the Rissley case. Hedrich often told her he "didn't really know what he was doing" and that he "wanted someone to help him." Austin said she got the impression that Hedrich did not think Flood could help him. Austin stated, "I don't really remember working with Mr. Flood that much, it seemed like Mr. Flood wasn't that involved in the case." Hedrich did mention Andrea Lyon. He considered her an expert and "really wanted her help."

Hedrich told Austin he did not know how to handle the pretrial motions and did not understand what evidence he needed in support thereof. He asked Austin to draft the motions, including the late-filed motion to suppress, and generally signed the motions she composed without modification.

Austin was present at the courthouse on the day of the altercation. Austin stated that Michael Henneberry had emerged first from the judge's chambers, obviously upset, followed by Bernabei. Austin recalled, "his face was flushed and he was tense and he started yelling at me and Mr. Henneberry, how, didn't we have any conscience, how could we sleep at night defending this baby killer and things like that."

Defendant took the stand at the post-conviction hearing. He stated that, prior to his guilty plea, his conversations with Hedrich consisted primarily of Hedrich telling him what Flood had been doing on his case. Hedrich told defendant about Flood's background and his experience in criminal cases. Asked what Hedrich had told him about Andrea Lyon before the plea, defendant responded, "he come in and he said he had contacted this, what he said, this number one person, that she had, her name was Andrea Lyon and that she was going to help him know what to do in this situation. That she specialized, you know, in this field." Defendant testified that he was "more comfortable with Mr. Flood and the advice of Andrea Lyon," than with that of Hedrich. He placed more importance upon their opinions. Hedrich rarely discussed legal points with him, and had stated he "didn't know what he was doing." Moreover, Hedrich had indicated he was afraid of State's Attorney Bernabei. Hedrich had complained to defendant that he was not welcome in restaurants, and they would "burn his toast," because he represented defendant.

On the day he pled guilty, Hedrich came to see him and told him the judge was on his way to take the guilty plea. Hedrich indicated he wanted defendant to plead guilty. He said he had discussed it with Flood and Lyon. Hedrich told him, "we feel like this is the thing we want you to do * * *." Defendant said he pled guilty, relying upon Hedrich's representation that Flood and Lyon had agreed. Hedrich advised him he would get the death penalty unless he waived a jury and pled guilty. He was not told he could have waived a jury and had a judge preside at the guilt phase of a trial.

He had previously discussed with Hedrich the circumstances of his arrest and initial statement to law enforcement authorities in Michigan. He said he had advised Hedrich that he had not been given Miranda warnings prior to his first statement, and that the police officers who took that statement had assured him he was not under arrest at the time it was given. Hedrich told defendant it did not matter that he had not been given Miranda warnings initially because he was given them before subsequent statements were taken.

After he pled guilty, both Flood and Lyon told defendant they had never advised Hedrich to plead him guilty; quite the contrary, they had specifically advised against it. Had Hedrich told him the truth, defendant would not have entered the guilty plea. A motion was prepared to withdraw guilty plea and the matter was set for hearing.

At that hearing, a jailer and a probation officer testified that defendant had told them he did not want to withdraw his guilty plea. In his post-conviction testimony, defendant readily admitted that he had told those individuals he did not want to withdraw his plea of guilty. He said he did so to curry favor with his jailers. Defendant testified that he had felt "pretty intimidated" while in jail. When placed in general population with other inmates, he had been immediately attacked. He subsequently had a conversation with the State's Attorney and the sheriff wherein he had asked that charges be brought against his assailants. According to defendant, State's Attorney Bernabei responded by saying, "he didn't care what I wanted to do, he was too busy working on my case to kill me." Under the circumstances, he thought it best to ingratiate himself to those with whom he had frequent contact.

At the hearing on his motion to withdraw the guilty plea, when testimony was offered concerning his statements, defendant turned to Hedrich, who was sitting "kitty-corner" behind him, away from counsel table. Defendant said he told Hedrich he would "like to explain why that was said." Hedrich responded that he could not do anything about it, "only Andrea Lyon could testify."

Under cross-examination, defendant testified that Hedrich had not spoken of waiving a jury until the morning of the plea. Defendant understood that by pleading guilty he was waiving a jury, judge and trial. During the plea proceeding, he gave the judge the answers he had been instructed to give. He claimed that Hedrich led him through the procedure by nodding to him to elicit affirmative responses where warranted. He pled guilty because he was told to do so. In his post-conviction testimony, defendant stated he wanted a trial on the issue of guilt or innocence. Defendant admitted he had not complained about Hedrich's representation at the time of the plea. Asked whether he understood the judge's admonitions, defendant was somewhat evasive in his answers, opining that he was sick the morning of the plea. Notwithstanding defendant's obvious reluctance to answer those questions, my review of the record does reveal that Hedrich did advise the court at one point in the plea proceeding: "The defendant feels like he is going to pass out. Maybe he can sit down." I note that many of the State's Attorney's initial questions went to what defendant did in front of the judge taking the plea, not why defendant pled guilty in the first place.

Bernabei subsequently used his post-conviction inquiry to question defendant about matters bearing directly on the issues of his guilt or innocence and suppression. Despite the limits placed upon defense counsel's questioning of Hedrich on issues relating to suppression, Bernabei was allowed free rein on that subject. Defendant was reluctant to answer the State's questions in those areas as well, and his responses were often evasive.

Under cross-examination, defendant testified that he had met with Flood and talked about the case "probably a couple" times before the guilty plea was entered. Flood had wanted to know what defendant had done in Iowa and Michigan, and had asked about the circumstances of defendant's arrest. Defendant was obviously reluctant to reveal the details of his conversations with Flood, and evasive in his answers. Defendant acknowledged he had not told Flood about a satanic cult which he had claimed was involved in the murder of Kayla Lansing. He conceded he had told Hedrich and the police something about a satanic cult a few weeks after he was arrested. He admitted there had been no cult involved in the killing.

Defendant testified to the circumstances of his arrest. He said he had been arrested by law enforcement officers in the State of Michigan in the middle of the night. He was handcuffed and taken into custody, but was not given Miranda warnings until approximately 5:30 or 6 in the morning, after his transfer to Berrien County jail, and after he had given his first statement to authorities. When asked, he stated he did recall FBI Agent LaPikas testifying at his sentencing hearing, and he remembered him saying that warnings had preceded the statement.

Defendant was asked, in a long succession of questions, what he knew about various aspects of the State's strong case against him when he pled guilty. He was asked about the circumstances of his questioning in an apparent attempt to litigate the suppression issue in the post-conviction proceeding. Defendant denied that he knew the prosecution had "overwhelming evidence" against him.

When the State commenced its portion of the case, State's Attorney Bernabei recalled John Hedrich as a witness. Hedrich denied that defendant had indicated he had not received Miranda warnings before his first statement.

James Reed, a jailer for Bureau County, was called as a witness and testified that on July 8, 1992, defendant had stated he did not want to withdraw his guilty plea. Defendant's alleged statement took place after the motion to withdraw the guilty plea.

Daniel Bute testified that he was appointed to represent defendant on July 8, 1992. Bute said he handled the sentencing proceedings in the case "exclusively." Bute said, "I wouldn't have come over here if I had to have John [Hedrich] help me, I was going to run the thing." A condition of his representation was that Hedrich not be involved at all. I note, however, that Hedrich remained co-counsel of record throughout the proceedings. According to defendant, Hedrich remained in the courtroom throughout the sentencing proceedings, "snoring" at times.

In rebuttal, the defense called Leo Orban, an investigator for the defense in this case. Orban attempted to testify regarding trips he had made to Michigan to speak with Diane Neals, defendant's companion on the night he was arrested. An objection to that line of inquiry was sustained. Defense counsel then asked Orban about a trip he had made to Iowa with Flood. An objection to that line of questioning was sustained, and the defense called no other witnesses in rebuttal.

In the course of his closing argument, State's Attorney Bernabei argued that John Hedrich had furnished effective assistance of counsel to defendant and, even if he had not, there was no prejudice to defendant. Addressing the judge, Mr. Bernabei stated:

"Judge, legally irrelevant if John Hedrich didn't even know that we had a Fifth and Sixth Amendment, if he didn't even know about Miranda v. Arizona. If there was no basis to file and pursue a motion [to suppress], it's irrelevant, there is no ineffectiveness, there is no prejudice.

* * *

And as far as this intimidation by me, it doesn't matter what did or didn't happen in that conference room. It matters not. Because the uncontradicted testimony of John Hedrich is that it had no affect [ sic] on what he did or didn't do or in no way interfered with his ability, desire and intent to act in the best interest of his client."

Having heard the evidence and arguments of counsel, and having reviewed the record and prior proceedings pursuant to the parties' stipulation, the court announced its ruling, denying defendant's petitions for post-conviction relief. The court stated it had allowed an evidentiary hearing on the matter of defendant's ingestion of psychotropic drugs and on four claims of ineffective assistance of counsel, entailing (1) deficient representation resulting from the altercation between Hedrich and Bernabei; (2) denial of defendant's right to testify at the hearing on his motion to withdraw guilty plea; (3) Hedrich's failure to testify at that hearing; and (4) alleged misrepresentations of Hedrich, inducing defendant to plead guilty.

The court found that defendant was not taking drugs "at any time relevant to the proceedings in this case, the contested motions and guilty plea, the motion to vacate the guilty plea, the sentencing." The court found that those matters "took place several months after the last time any psychotropic drugs would have been in the system of the defendant."

Turning to the first of defendant's ineffective assistance of counsel claims, the court found no evidence showing that an "incident" involving Bernabei had any "prejudicial" effect on Hedrich. The court cited one snippet of Hedrich's testimony wherein he stated that the altercation with Bernabei did not affect him, and evidence that Flood had handled the hearing on defendant's motion to withdraw his guilty plea. The court observed there was "no evidence that Mr. Hedrich at all interfered."

Addressing defendant's second and third claims, respectively, the court ruled that defendant was never denied his right to testify at the hearing on his motion because "there was never a demand to testify made." As for Hedrich's silence at that hearing, the court placed emphasis on Flood's testimony that he was in charge of courtroom proceedings on that day, adding, "What was he [Hedrich] going to testify about that wasn't in [his] affidavit?"

Finally, the court took up the claim that defendant's guilty plea was the result of deficient representation in the person of Hedrich, and active misrepresentation by him. The court observed, "A plea of guilty is a prejudicial act. If ineffective assistance of counsel caused a plea of guilty, that should be the basis for a new trial. It could not be argued that overwhelming evidence shows no prejudice exists and the defendant would have been convicted anyway because the result of the trial cannot be predicted. Accordingly, this court must determine whether or not ineffective assistance of counsel caused the defendant to plead guilty."

According to the court's recollection of Hedrich's testimony, Hedrich had not admitted any misrepresentation to defendant in their discussions prior to defendant's guilty plea. Hedrich could not recall any conversation wherein he misrepresented Flood's or Lyon's position to defendant. The court noted that Hedrich could not recall the defendant initiating any inquiry as to the opinion held by Flood or Lyon, in "contradiction" to defendant's testimony. The court rejected defendant's testimony, stating, "The court does not have to accept his testimony simply because no one else has contradicted it." The court held that defendant had not proven misrepresentations had taken place or were the basis of his guilty plea.

The court also cited Hedrich's feeling that the defendant pled guilty knowingly, although he could not "specifically recall the entire conversation" preceding the plea (emphasis added). The court rejected defendant's claim that he did not understand the admonitions the court gave him during the guilty plea. The court found his testimony in that regard incredible, and contradicted by both the record and the testimony of John Hedrich.

The court then announced it would "go on to consider the merits" of defendant's claim regarding ineffective assistance of counsel for failure to timely file a motion to suppress, "despite the fact that it was not properly before the Court." The court found defendant's testimony that he had not received Miranda warnings was "contradicted by the testimony of the officers who previously testified in this case," evidently referring to testimony given during defendant's sentencing hearing. The court stated defendant had, at one point in his testimony, acknowledged he had received Miranda warnings and he had understood them. The court observed Hedrich had testified defendant had not mentioned the absence of warnings prior to his initial statement.

With respect to the claim of Hedrich's "general incompetence," a claim which was, supposedly, not an issue before the post-conviction court, the court nonetheless announced its determination that the issue had been "ruled on and waived" in the course of the disposition of defendant's motion to withdraw guilty plea, preserved in defendant's post-trial motion, then waived on direct appeal when it was not raised. Notwithstanding, the post-conviction court considered the claim, and rejected it, finding Hedrich's representation to be competent, and his recommendation to the defendant the result of a strategy to throw defendant "on the mercy of the [sentencing] jury."

I begin my analysis with defendant's claim that he was denied effective assistance of counsel. Specifically, in his formal statement of the issue, defendant claims that Hedrich, while under a misapprehension of the law, counseled him to plead guilty so that the jury would not have to hear the evidence twice and to buy more time for mitigation. Defendant follows his issue statement with a broad-based attack on Hedrich's competence in the context of this capital case.

The State initially responds that defendant has waived "this particular claim" because he raised a number of claims based on ineffective assistance, and this claim was not among them, having arisen in the course of Hedrich's testimony during the post-conviction hearing. My review of the defendant's amended post-conviction petition reveals one claim of ineffective assistance of counsel based upon counsel's misrepresentation of facts and another based upon his general incompetence. Although the post-conviction court's rulings tended to be unclear, the court, in announcing its decision, stated that it had allowed the evidentiary hearing upon, inter alia, alleged misrepresentations of Hedrich, inducing defendant to plead guilty. The court went on to rule on the merits of a "general incompetence" claim which it had earlier indicated was not to be an issue at the hearing. The court presumably ruled on the issue because it had allowed both sides wide latitude in questioning, and the court felt the issue had been fully developed. The State did not object to the procedure. I find no bar to our consideration of the full range of ineffective-assistance claims raised by defendant.

My analysis for determining whether defendant has been denied the effective assistance of counsel begins with the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984), a standard which has been applied in the context of guilty pleas at both the state and federal levels. People v. Huante, 143 Ill.2d 61, 67 (1991); Hill v. Lockhart, 474 U.S. 52, 57, 88 L.Ed.2d 203, 209, 106 S.Ct. 366, 369 (1985). If a guilty plea is entered in reasonable reliance upon the advice or representation of defense counsel, and that advice or representation demonstrated incompetence, then it can be said that the defendant's guilty plea is not voluntary. People v. Palmer, 162 Ill.2d 465, 474 (1994); People v. Correa, 108 Ill.2d 541, 548-49 (1985). In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's representation fell outside the wide range of reasonable professional assistance, and that there is a reasonable probability, absent his attorney's deficient advice, his decision with respect to the plea would have been otherwise. People v. Curry, 178 Ill.2d 509, 529-31 (1997).

Contrary to the view expressed by the circuit court, I believe there is no doubt defendant has made the required showing. Even if the circuit court found all of defendant's testimony incredible, a finding which would have been unwarranted in my opinion, Hedrich's testimony alone established that he misrepresented the facts and the law when he advised defendant to plead guilty and, because he was ignorant of the applicable procedural options, he failed to provide defendant with essential information. In my opinion, certain representations to defendant border on outright lies, reflecting a course of conduct which seems to be consistent with Hedrich's obvious desire to plead defendant guilty without either Flood or Lyon knowing about it in advance. Moreover, nothing in the way Hedrich conducted himself convinces me that he was even remotely qualified to represent the defendant in this capital case.

Hedrich testified that he was not prepared to represent a capital defendant on the day he pled defendant guilty to first degree murder in a "blind," or open, plea. He admitted the investigation of the case had not been completed, including that portion of the investigation pertaining to the suppression issue, what Hedrich so casually referred to as "that confession thing." Hedrich initially testified that he had advised defendant to plead guilty in order to get more time to prepare for mitigation and to avoid having a jury hear the evidence twice. With respect to the advice premised on the first avowed "strategic" reason for the plea, I make two observations: Hedrich had not asked for a continuance based on lack of preparation and, since he had not completed his investigation, he had no idea what evidence he might ultimately have at his disposal. Thus, Hedrich was not in a position to advise defendant or make informed strategic decisions, because he simply did not have all the necessary facts. Moreover, Hedrich's advice was based upon a misunderstanding of the capital process which was plainly erroneous, and which could have been corrected had he taken the time to read the statute. He would have discovered that there was no need for a jury to hear the evidence twice.

When the prosecutor suggested to Hedrich in cross-examination another strategic reason for the plea — that Hedrich had pled defendant guilty so he could throw defendant on the mercy of the jury — Hedrich denied that he had discussed that strategy with defendant, and could not remember whether it had been a tactical consideration at the time. That justification — which the circuit court saw fit to utilize in its ruling — had obviously not occurred to Hedrich before the State's Attorney suggested it. Hedrich did not mention it at all on direct examination. It is inappropriate to construct strategic defenses which trial counsel did not offer (see People v. Popoca, 245 Ill. App.3d 948 (1993)) and which clearly were not strategic considerations at the time in question. Moreover, since Hedrich had not completed his investigation of the case, he was not in a position to determine whether even that "strategy" was the best course to follow. It appears that Hedrich proceeded through a critical stage of this capital case at a time when he had not sufficiently investigated the law or the facts, an omission which this court has closely scrutinized in similar cases. See People v. Orange, 168 Ill.2d 138, 173 (1995); People v. Perez, 148 Ill.2d 168, 190-96 (1992); People v. Ruiz, 132 Ill.2d 1, 27-28 (1989).

As Hedrich's own remarks indicate, Hedrich thought highly of Flood and Lyon and, by his own testimony, he conveyed that confidence to defendant. Hedrich at one point testified that defendant would occasionally ask what Flood or Lyon thought about an issue. At another point in his testimony, Hedrich said defendant did not have to ask what Lyon thought about an issue, Hedrich would tell him.

Notwithstanding, Hedrich admitted he pled defendant guilty against the advice of Andrea Lyon. Hedrich admitted he could not recall Flood ever recommending a plea of guilty. He conceded he "might" have told defendant that Flood had concurred in the decision to plead guilty. In fact, Flood had not concurred, as Hedrich's own testimony confirmed: "Well, we discussed pleading him guilty, that's true; we discussed not pleading him guilty, that's true. * * * I don't think we came to a definite." However, Hedrich clearly suggested to defendant that Flood had agreed that the plea was in defendant's best interest: "I told him [defendant] that J.D. [Flood] and I discussed it [the guilty plea] * * * and I thought that was our best shot at that time."

The defendant, who Hedrich stated had the mind and maturity of a 12-year-old, would no doubt have understood Hedrich's statement as an indication of Flood's concurrence. No one disputes that, when he learned the truth, defendant wanted to withdraw the plea. According to Hedrich, defendant wanted to withdraw the plea after he had been informed of Lyon's advice to Hedrich. In the motion to withdraw defendant's guilty plea, to which Hedrich subscribed and to which he attached an affidavit, Hedrich stated that the defendant's plea was not knowing and intelligent, and that it was necessary to litigate a motion to suppress, a motion which Hedrich had failed to file before the plea was entered.

I do not see how the circuit court could have concluded that defendant's guilty plea was not the result of Hedrich's misrepresentations of law and fact. Where, as here, an attorney's advice or representation demonstrates incompetence, then it can be said that the defendant's plea of guilty is not voluntary. People v. Correa, 108 Ill.2d 541, 548-49 (1985). Admonishments of the court, under these circumstances, would "not have the effect of obliterating from [defendant's] mind the previous misrepresentations made to him." Correa, 108 Ill.2d at 552. Absent Hedrich's deficient advice and his misrepresentations to defendant, I am convinced defendant's decision with respect to the plea would have been different. See Hill, 474 U.S. at 59, 88 L.Ed.2d at 210, 106 S.Ct. at 370; Curry, 178 Ill.2d at 531. As the Supreme Court stated in Hill, "in order to satisfy the 'prejudice' requirement [of Strickland], the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59, 88 L.Ed.2d at 210, 106 S.Ct. at 370. I believe, given a full disclosure of all his options, defendant would have taken the advice of Flood and Lyon, over that of Hedrich, and proceeded to trial. However, my view in this case is premised upon more than just this aspect of Hedrich's deficiencies.

I am also deeply troubled by Hedrich's apparent vulnerability to intimidation, and the likelihood that, as his co-counsel J.D. Flood suggested, he made decisions in this case based not on defendant's best interests, but on the anticipated reaction of the State's Attorney. An indispensable element of the effective performance of defense counsel's responsibilities is the ability to act independently of the government and oppose it in adversary litigation. Ferri v. Ackerman, 444 U.S. 193, 204, 62 L.Ed.2d 355, 363, 100 S.Ct. 402, 409 (1979). This aspect of the case interjects, in my view, elements of conflict of interest, but a form of conflict which the case law seems rarely to have addressed: fear. Sadly, in this case the fear which may have adversely affected defense counsel's performance, and colored his post-conviction testimony, was fear of an officer of the court who was charged with upholding the law.

This court has held that the right to effective assistance of counsel includes assistance from an attorney whose allegiance to the client is not diluted by conflicting interests. People v. Spreitzer, 123 Ill.2d 1, 13-14 (1988). Given facts such as these, state and federal case authorities agree that reversal of a conviction will be had only upon a showing that "an actual conflict of interest adversely affected" counsel's performance. Cuyler v. Sullivan, 446 U.S. 335, 350, 64 L.Ed.2d 333, 348, 100 S.Ct. 1708, 1719 (1980); Spreitzer, 123 Ill.2d at 18; Stoia v. United States, 22 F.3d 766, 770 (7th Cir. 1994). "What this means is that the defendant must point to some specific defect in his counsel's strategy, tactics, or decision making attributable to the conflict." Spreitzer, 123 Ill.2d at 18. In Stoia, the court found that "[a]n adverse effect occurs, if, but for the attorney's actual conflict of interest, there is 'a [reasonable] likelihood that counsel's performance somehow would have been different,'" and "[a]n actual conflict of interest results if '"[a] defense attorney is required to make a choice between advancing his own interests to the detriment of his client's interest."'" Stoia, 22 F.3d at 771. I find these principles to be consistent with Illinois law.

In the case at bar, Hedrich did not withdraw as counsel for defendant and take the stand in support of the allegations contained in either his motion to withdraw the guilty plea or the affidavit attached thereto. Hedrich's affidavit stated that the motion was based upon facts that did not appear of record. Indeed, only two persons knew what Hedrich told defendant which prompted defendant to enter an open plea of guilty to first degree murder: Hedrich and defendant. Neither testified at the hearing on the motion to withdraw the guilty plea. The question is why. Defendant testified at his post-conviction hearing that he had asked Hedrich to testify and Hedrich said he could not. The post-conviction court, of course, found defendant's testimony was not credible. However, Hedrich, in his post-conviction testimony, which the court expressly found credible, indicated that defendant "may have asked" to testify at the hearing. Hedrich was then confronted with, and acknowledged, his deposition testimony wherein he affirmatively stated defendant had asked to testify. Flood, of course, testified that he chose not to put defendant on the stand because he thought Andrea Lyon's testimony would carry the day. While that raises another question of competent representation, it is one which I need not fully explore today. Suffice it to say that there was no valid reason proffered by anyone to explain why Hedrich did not testify. As defendant's post-conviction counsel observed, someone — defendant or Hedrich — had to take the stand to testify to their conversation; neither did.

What is exceedingly troubling to me in this regard is the obvious fear of the State's Attorney which Hedrich exhibited and the reasonable likelihood that Hedrich did not testify because he was afraid of the individual whom he claimed had assaulted him just a few days prior to the hearing. At the evidentiary hearing on defendant's post-conviction petitions, Hedrich testified that he did not sit at counsel table during the hearing on defendant's motion to withdraw the guilty plea. He sat near the sheriff for protection. He stated he wanted to stay out of the "line of fire" in case the State's Attorney got upset, going so far as to admit that he placed Flood nearer State's Attorney Bernabei so that Flood would be assaulted if Bernabei was moved to violence. Hedrich admitted he took precautions not to offend Bernabei. To me, the logical conclusion to draw from Hedrich's post-conviction testimony is that Hedrich was afraid to take the stand, notwithstanding his feeble suggestions to the contrary. For all intents and purposes, Hedrich never again spoke on defendant's behalf after the alleged assault.

While it is certainly possible to argue, as the State does, that Flood could have called Hedrich to testify, Flood may well have thought that option was either not feasible or foreclosed to him. First, it is not entirely clear from the record to what extent Hedrich could still control the conduct of the litigation at the time of the hearing. Hedrich was still "lead" counsel, although Flood was conducting the hearing. I would note Flood's unrefuted allegation in his motion to withdraw as counsel wherein he stated Hedrich had "made decisions affecting the best interests of the defendant based upon the anticipated reaction of the State's Attorney as opposed to the best interests of the defendant." That allegation came close on the heels of the hearing on the motion to withdraw guilty plea, wherein Hedrich did not testify. Another consideration may well have been Flood's reluctance to argue Hedrich's incompetence at a time when Hedrich was still co-counsel and technically his superior in the case. This court has held that counsel cannot be expected to argue his own incompetence, and such a rule has been applied in other contexts, such as where trial counsel hired the attorney who handled the appeal. Ruiz, 132 Ill.2d at 9-10. That rule, although not directly applicable, would seem to have some relevance in this instance where one of the defendant's attorneys is put in a position where he is expected to argue the incompetence of defendant's other attorney, and both are still attorneys of record in the case. Hedrich's continued presence as "attorney of record" throughout these proceedings would have posed the same problem, perceived or actual, for Daniel Bute during the post-trial process. I believe the evidence shows Hedrich had a conflict which adversely affected what was already a substandard performance in this case.

Taking a broad and inclusive view of what has transpired in this case, I believe that defendant's conviction must be reversed and the cause must be remanded to the circuit court to permit defendant to withdraw his guilty plea. The basis for my belief subsumes everything I have discussed to this point, including Hedrich's incompetence in the arena of criminal practice, and the crippling effect that fear appears to have had on his judgment. In my opinion, these factors, combined in this case to produce a near total breakdown in the adversarial process and a threat to the very integrity of the judicial process itself.

As this court has recognized, there are unique and exceptional circumstances where the two-part test of Strickland need not be applied at all. People v. Blue, 189 Ill.2d 99, 138-39 (2000) (reversed and remanded for a new trial due to cumulative errors which "threaten[ed] the very integrity of the judicial process," notwithstanding this court's acknowledgment that evidence of guilt was "overwhelming"); People v. Johnson, 128 Ill.2d 253, 266 (1989). In People v. Williams, 93 Ill.2d 309, 324-25 (1982), this court, faced with the "unique circumstances and sequence of events" of that capital case, entailing "numerous instances of inaction by counsel," reversed and remanded for a new trial, declining to analyze the case as to prejudice. In People v. Hattery, 109 Ill.2d 449, 464-65 (1985), another capital case, this court forsook the two-part test of Strickland because of a serious breakdown of the adversarial process, and granted a new trial despite overwhelming proof of guilt. See also Johnson, 128 Ill.2d at 268. Hattery relied upon the United States Supreme Court's opinion in United States v. Cronic, 466 U.S. 648, 659, 80 L.Ed.2d 657, 668, 104 S.Ct. 2039, 2047 (1984), wherein the Court stated, where "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." Quoting Judge Wyzanski, the Court observed, "'While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators.'" Cronic, 466 U.S. at 657, 80 L.Ed.2d at 667, 104 S.Ct. at 2046, quoting United States v. Twomey, 510 F.2d 634, 640 (7th Cir. 1975).

To be sure, there must be a level below which we will not allow the representation of a criminal defendant to sink, irrespective of prejudice. To do less is to invite the disparagement and denigration of the adversarial component of our criminal justice system as nothing more than a sham. To do nothing, in this instance, is to countenance — perhaps encourage — courts and prosecutors to look the other way when they are confronted with an attorney obviously unqualified to represent a criminal defendant, yet indifferent to his own responsibility to withdraw from a case in which he is not qualified. I would hope that the members of this court cherish the integrity of our system of criminal jurisprudence too much to allow the second prong of "prejudice" to entirely wash away the requirement of meaningful representation in any given case.

It seems to me that both the trial court and the State's Attorney should have noticed early on Hedrich's serious shortcomings in the area of criminal procedure in general, and capital litigation in particular — and what were obviously troubling lapses in the logical presentation of his client's position. Something could have been done then, but was not. Remedial measures could have been taken at the time of the hearings on the motion to withdraw guilty plea or Flood's motion to withdraw from the case. The circumstances leading up to and including the motion to withdraw guilty plea should have put the circuit court on notice that a problem existed. A fully developed record at that point in the proceeding should have resulted in leave to withdraw the guilty plea.

Although the decision whether to permit a guilty plea to be withdrawn is within the sound discretion of the trial court, that discretion should be exercised liberally, particularly in capital cases, in favor of life and liberty. People v. Pugh, 157 Ill.2d 1, 13 (1993). When it appears that the guilty plea was entered on a misapprehension of the facts or of the law, or where the ends of justice will be better served, the court should permit withdrawal of the guilty plea. Pugh, 157 Ill.2d at 13-14; People v. Morreale, 412 Ill. 528, 531-32 (1952).

In my view, tremendous judicial resources have been needlessly wasted to rectify a problem that could have been easily remedied at any time prior to sentencing proceedings by the removal of Hedrich, vacation of defendant's guilty plea, and appointment of a different attorney, possessed of competence and independence. I also note, with some bewilderment and disdain, a phenomenon that occurs all too frequently in this state: the win-at-all-costs attitude of some prosecutors who, possessed of a strong case, needlessly create error in their overzealous pursuit of a conviction and thus occasion reversal of a conviction which would have been otherwise unassailable, had they only relied upon the facts of their case and the integrity and good sense of the trier of fact.

A prosecutor has an obligation to comport himself in a manner which not only ensures that the defendant receives a fair hearing, but which inspires respect for the administration of justice. People v. Lyles, 106 Ill.2d 373, 412 (1985). As the appellate court so eloquently observed in People v. Weilmuenster, 283 Ill. App.3d 613, 626 (1996):

"Society reposes in its prosecutors an awesome and sacred trust. They alone possess the authority to institute the sole state-sanctioned process through which a citizen's liberty and life may legally be ended. Not surprisingly, the grant of such staggering power carries with it commensurate responsibilities. Prosecutors have as their preeminent goal not victory, but justice. See, e.g., People v. Lyles, 106 Ill.2d 373, 411-12 (1985) (it is the prosecutor's responsibility to safeguard the constitutional rights of all citizens, including the defendant's); [citation]. Without a doubt, prosecutors must discharge their duties with vigor and zealousness. [Citations.] However, prosecutors who — blinded by this zealousness — lose sight of their ultimate goal breach both their ethical code and public trust. They do so at their peril."

I hope that we have reinforced these principles in our recent amendment of Rule 3.8 of the Illinois Rules of Professional Conduct, wherein it is now specifically stated, "The duty of a public prosecutor or other government lawyer is to seek justice, not merely to convict." I am also encouraged by the work of the Special Supreme Court Committee on Capital Cases, and I trust that the standards established for representation in capital cases will ensure more able representation and thus a trial which is both fair and reliable.

In the broadest sense, we in the legal community must be ever vigilant that we, in an effort to mete out a measured justice, do not dispense with fairness and the procedural safeguards which ensure a degree of certainty, and thus sink unwittingly to the level of those whom we would punish. As attorney Carroll observed in his closing argument before the post-conviction court, liberally paraphrasing Friederich Nietzsche: "Whoever seeks to protect society from monsters, should see to it that he doesn't become a monster in the end."

The unusual circumstances of this case are — I hope — unique, and will rarely, if ever, be duplicated again; however, they warrant nothing less than reversal. The integrity of our system of justice demands no less.

I would reverse the judgment of the circuit court and remand this cause with directions to permit defendant to withdraw his guilty plea.

JUSTICE KILBRIDE joins in this dissent.

JUSTICE FITZGERALD, also dissenting:

I agree with the majority that a "lack of culpable negligence" under section 1 of the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 (West 1994)) may be difficult to establish. Under the peculiar facts and circumstances of this case, however, I would hold that, as a matter of law, defendant was not culpably negligent. Therefore, I would affirm the circuit court on this issue and consider the merits of defendant's post-conviction claims.

Relying on the advice of knowledgeable counsel, defendant filed his petition within three years of the date of his conviction. The majority holds that, under the clear and unambiguous language of the controlling version of the Act, defendant's petition was at least 6 days late or, at most, 10 days late and that defendant's reliance on counsel's advice does not absolve defendant of culpable negligence, i.e., it does not excuse the procedural default. I disagree.

The majority's construction of the statute — like defendant's construction of the statute — renders some language superfluous. Indeed, there is no reasonable construction which would give effect to each and every word. Depending on which words are deemed mere surplus, the filing deadline will shift. It is, therefore, unreasonable to conclude that the statute is clear and unambiguous, and that defendant need look no further than its plain language to determine the date by which his post-conviction petition must be filed. Moreover, the interpretation advanced by defendant — that a post-conviction petition must be filed by the earlier of the expiration of six months following the termination of a defendant's direct appeal, or the expiration of three years following a defendant's conviction — is not inherently unreasonable, and is no less reasonable than the interpretation adopted by the majority. The only difference is which words will be deemed meaningless.

The majority states that any doubt that post-conviction proceedings must sometimes be initiated before the conclusion of proceedings on direct appeal was removed by subsequent amendment of the statute which deleted certain language. That we may only in hindsight discern the legislature's intent convinces me that the statute with which defendant was faced was not clear and unambiguous. Furthermore, at the time defendant filed his post-conviction petition, he did not have the benefit of this subsequent clarifying amendment.

In light of the ambiguity in the statutory language, the reasonable interpretation advanced by defendant, and defendant's reasonable reliance on the advice of knowledgeable counsel, I would hold that defendant was not culpably negligent in filing his post-conviction petition a few days beyond the purported statutory deadline.

CHIEF JUSTICE HARRISON and JUSTICE KILBRIDE join in this dissent.