People v. Martin
Annotate this Case
NO. 4-96-0241
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
MARK MARTIN, ) No. 93CF27
Defendant-Appellant. )
) Honorable
) Stuart H. Shiffman,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In April 1991, defendant, Mark Martin, struck and
killed three pedestrians while driving his pickup truck. In
January 1993, a jury found defendant guilty of three counts of
reckless homicide (Ill. Rev. Stat. 1991, ch. 38, par. 9-3(a)),
two counts of driving while under the influence of alcohol (DUI)
(Ill. Rev. Stat. 1991, ch. 95«, pars. 11-501(a)(1), (a)(2)), and
one count of leaving the scene of an accident (Ill. Rev. Stat.
1991, ch. 95«, par. 11-401(a)). In March 1993, the trial court
sentenced defendant to 14 years in prison on each reckless homi-
cide conviction and 364 days on the leaving the scene of the
accident conviction, with all sentences to be served concurrent-
ly. Defendant appealed, and this court affirmed. See People v.
Martin, 266 Ill. App. 3d 369, 640 N.E.2d 638 (1994).
In February 1996, defendant filed a pro se petition for
post-conviction relief, alleging only that the trial court abused
its discretion by considering the deaths of the victims as an
aggravating factor at sentencing. The court subsequently dis-
missed defendant's petition as patently without merit pursuant to
section 122-2.1(a)(2) of the Post-Conviction Hearing Act (Act)
(725 ILCS 5/122-2.1(a)(2) (West 1994)). In its order of dismiss-
al, the court specifically found that (1) defendant's claim
failed to allege a constitutional violation; (2) defendant had
waived any claim regarding sentencing because he failed to raise
the issue on direct appeal; and (3) the court considered "all
appropriate factors" in imposing the sentence.
Defendant appeals, arguing that the trial court erred
by dismissing his post-conviction petition because it presented a
"meritorious claim" for relief due to a constitutional violation
--namely, that defendant's counsel on direct appeal provided
ineffective assistance by failing to raise the issue that the
court considered improper aggravating factors at sentencing.
We affirm.
I. POST-CONVICTION HEARING ACT
In People v. Henderson, 171 Ill. 2d 124, 131, 662 N.E.2d 1287, 1292 (1996), the supreme court discussed the general
rules regarding post-conviction proceedings, as follows:
"The [Act] provides a remedy for defendants
who have suffered a substantial violation of
their constitutional rights at trial. [Cita-
tion.] A post-conviction proceeding is not
an appeal of the underlying conviction; rath-
er, it is a collateral attack on the trial
court proceedings in which a defendant at-
tempts to establish constitutional violations
that have not been and could not have been
previously adjudicated. [Citation.] The
defendant bears the burden of establishing
that a substantial violation of his constitu-
tional rights occurred."
It is within this context that we address defendant's claim.
II. INEFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL
A. Waiver
Defendant argues that the trial court erred by dismiss-
ing his post-conviction petition because it presented a meritori-
ous claim that his counsel on direct appeal provided ineffective
assistance by failing to raise the issue that the court consid-
ered improper aggravating factors at sentencing. Defendant
specifically contends that even though his petition did not in
fact allege ineffective assistance of appellate counsel, it
should be viewed as presenting that claim because the waiver
doctrine is relaxed where "the alleged issue of ineffective
assistance of counsel stems from counsel on appeal." We dis-
agree.
In support of his relaxed waiver contention, defendant
relies on People v. Barnard, 104 Ill. 2d 218, 229, 470 N.E.2d 1005, 1008 (1984), and People v. Whitehead, 169 Ill. 2d 355, 371,
662 N.E.2d 1304, 1311-12 (1996). In Barnard, the defendant had
not raised on direct appeal the issue of trial counsel's compe-
tency; instead, he raised the issue for the first time in his
petition for leave to appeal to the supreme court. The supreme
court nonetheless addressed that issue and other trial errors (as
a matter of administrative convenience) "since defendant may
raise the question of trial counsel's competency [in a post-
conviction petition] under the [Act]." Barnard, 104 Ill. 2d at
229, 470 N.E.2d at 1008. In Whitehead, the supreme court held
that a post-conviction petition claim may survive the bar of
waiver when (1) the alleged waiver stems from ineffective assis-
tance of counsel on appeal; (2) "'where fundamental fairness so
requires'"; and (3) where the facts relating to the claim do not
appear on the face of the original appellate record. Whitehead,
169 Ill. 2d at 371-72, 662 N.E.2d at 1311-12, quoting People v.
Gaines, 105 Ill. 2d 79, 91, 473 N.E.2d 868, 875 (1984). In
Whitehead, the defendant's post-conviction petition actually
alleged that appellate counsel was ineffective for failing to
raise a certain issue on direct appeal.
The present case is far different from both Barnard and
Whitehead. Here, defendant's post-conviction petition never
mentions the issue of ineffective assistance of his counsel on
direct appeal. If this court accepted the position defendant
asserts, nothing would stop a defendant's counsel on appeal from
a dismissal of a post-conviction petition from combing the entire
record and raising new arguments--couched in terms of ineffective
assistance of counsel on direct appeal--for the sole purpose of
avoiding the application of res judicata and waiver.
In People v. Davis, 156 Ill. 2d 149, 163-64, 619 N.E.2d 750, 758 (1993), the supreme court addressed the related issue of
post-conviction counsel's duty to examine the record and wrote
the following:
"[I]t is the substance of the petitioner's
claims, in his initial post-conviction plead-
ing, which, in the first instance, determines
the fate of the petitioner's claims. The
post-conviction court's determination con-
cerning the merit of those claims is based
solely upon the petitioner's articulation of
the same.
Post-conviction counsel is only required
to investigate and properly present the peti-
tioner's claims. Had the legislature intend-
ed otherwise, it would, logically, have pro-
vided for the appointment of counsel prior to
the filing of the original petition. ***
[In a case where the post-conviction
court summarily dismisses an original peti-
tion for lack of merit], the court rules upon
the original petition based solely upon the
substance of the claims as presented by the
petitioner. No attorney is appointed, either
prior to or after the court's determination,
to examine the record for claims which could
have been, but were not, asserted. [(Empha-
sis added.)] Yet, it is conceivable that
substantial constitutional claims exist which
the petitioner, as a layperson, would not
have perceived. *** The post-conviction
court may, nonetheless, properly dismiss the
petition without regard to the existence of
such other claims." (Emphasis in original.)
We conclude that defendant--by wholly failing to make a
claim in his post-conviction petition that his counsel on direct
appeal provided ineffective assistance--has waived such a claim.
B. The Merits
Even assuming defendant had not waived his claim of
ineffective assistance of appellate counsel, we conclude that
defendant's counsel on direct appeal did not provide ineffective
assistance.
Claims of ineffective assistance of appellate counsel
are evaluated under the standard set forth in Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052
(1984). A defendant who contends that appellate counsel rendered
ineffective assistance by failing to argue a particular issue
must show that (1) "'the failure to raise that issue was objec-
tively unreasonable'" (performance component) and that, "'but for
this failure, his sentence or conviction would have been re-
versed'" (prejudice component). People v. Flores, 153 Ill. 2d 264, 283, 606 N.E.2d 1078, 1087 (1992), quoting People v. Cabal-
lero, 126 Ill. 2d 248, 270, 533 N.E.2d 1089, 1096 (1989). Fur-
ther, unless the underlying issues are meritorious, the defendant
obviously suffered no prejudice due to appellate counsel's
failure to raise them on direct appeal. People v. Coleman, 168 Ill. 2d 509, 523, 660 N.E.2d 919, 927 (1995).
Initially, we note that Lawrence Essig of the office of
the State Appellate Defender, who was appointed to represent
defendant on direct appeal, raised eight issues and argued each
issue thoroughly before this court. See Martin, 266 Ill. App. 3d
369, 640 N.E.2d 638; see also Coleman, 168 Ill. 2d at 523, 660 N.E.2d at 927, quoting People v. Collins, 153 Ill. 2d 130, 140,
606 N.E.2d 1137, 1142 (1992) (appellate counsel "'has no obliga-
tion to raise every conceivable argument which might be made, and
counsel's assessment of what to raise and argue will not be
questioned unless it can be said that his judgment in this regard
was patently erroneous'").
In addition, we conclude that had Essig raised on
direct appeal the issue that the trial court considered improper
aggravating factors at sentencing, it would not have mattered to
this court because the issue is not meritorious.
At the sentencing hearing in this case, the trial
court stated, in relevant part, the following:
"I've reviewed all the statutory aggra-
vating and mitigating factors. I have con-
sidered the material in the pre-sentence
report as I've indicated here this morning.
I have listened to the evidence presented
here today. I have listened to [defendant's]
statements, and although I've considered all
of the factors, I think there are three
things that perhaps bear some comment this
morning. The first one is, again, something
everyone here has mentioned this morning, and
that is that the [d]efendant's actions in
this case took three lives. For that conduct
alone, I think the [c]ourt would be warranted
in imposing a substantial punishment. Inter-
estingly enough, the [Unified Code of Cor-
rections (Code) (730 ILCS 5/1-1-1 et seq.
(West 1994))] allows the [c]ourt to impose in
other types of cases what we call extended
term penalty for the taking of multiple
lives, but in this case, [the legislature
has] already put the extended term provision
into the act of reckless homicide by allowing
a sentence of between three and 14 years when
this [c]ourt finds that someone is under the
influence of alcohol, and that's the second
factor I think that's very important to the
[c]ourt in connection with the case. Regard-
less of how you characterize them as super-
visions or convictions *** [defendant] has
had two prior DUI cases in court for which he
received supervision on two occasions. They
were separated by probation five or six years
and apparently the law allowed [defendant] to
receive supervision for the second offense.
*** [Defendant] is here before us with those
two occurrences on his record and certainly
if he learned nothing else, he should have
been aware of what the possible impact of
driving under the influence of alcohol might
have on himself or on others, and I think
that that leads us to the last factor, the
last point that the [c]ourt has to consider
***. *** [O]n any given day or any given
night *** in any place across the country,
there are hundreds of thousands of
[defendants] all over the place. They are
not bad people. They drink and they drive.
They leave the tavern and they get in their
car. Some of them get home without any prob-
lem. Some of them *** get stopped by a po-
lice officer and they get a ticket for driv-
ing under the influence of alcohol that af-
fects their lives to some extent. Some of
them hit a sign or a tree. Some of them
might have a personal injury accident where
no one is hurt very seriously and some of
them like [defendant] kill people on our
highways, and more than anything else, I
would hope that all of those [defendants],
those potential [defendants] who are in our
community[,] understand that if you perform
an act such as this and if you're one of the
unlucky ones whose conduct results in death,
then you must be prepared to face the penalty
that the law imposes, and in this case, it's
made even worse by the fact that it's three
deaths. Each death is important in its own
way, but there are three individuals who are
dead as a result of [defendant's] activities.
So if the message goes to the community[,] to
other potential people in the community, then
that's really all the [c]ourt can hope that
can be done in such a case as this."
1. Multiple Deaths As an Aggravating Factor
Defendant initially contends that the trial court erred
by considering the "end result" of defendant's conduct--namely,
the deaths of the three victims. Defendant claims that the
victims' deaths cannot be considered as an aggravating factor
because death is an element implicit in the offense of reckless
homicide. We disagree.
In People v. Saldivar, 113 Ill. 2d 256, 268-69, 497 N.E.2d 1138, 1143 (1986), quoting People v. Hunter, 101 Ill. App.
3d 692, 694, 428 N.E.2d 666, 668 (1981), the supreme court held
that
"[a] reasoned judgment as to the proper pen-
alty to be imposed must *** be based upon the
particular circumstances of each individual
case. [Citations.] Such a judgment depends
upon many relevant factors, including the
defendant's demeanor, habits, age, mentality,
credibility, general moral character, and
social environment [citations], as well as
'"the nature and circumstances of the of-
fense, including the nature and extent of
each element of the offense as committed by
the defendant"' [citations]." (Emphasis in
original.)
In so holding, the Saldivar court reasoned as follows:
"Sound public policy demands that a
defendant's sentence be varied in accordance
with the particular circumstances of the
criminal offense committed. Certain criminal
conduct may warrant a harsher penalty than
other conduct, even though both are techni-
cally punishable under the same statute.
Likewise, the commission of any offense,
regardless of whether the offense itself
deals with harm, can have varying degrees of
harm or threatened harm. The legislature
clearly and unequivocally intended that this
varying quantum of harm may constitute an
aggravating factor [(emphasis added)]. While
the classification of a crime determines the
sentencing range, the severity of the sen-
tence depends upon the degree of harm caused
to the victim and as such may be considered
as an aggravating factor in determining the
exact length of a particular sentence, even
in cases where serious bodily harm is argu-
ably implicit in the offense for which a
defendant is convicted. [Citations.]" (Em-
phasis in original.) Saldivar, 113 Ill. 2d
at 269, 497 N.E.2d at 1143.
In addition, section 5-5-3.2(b)(3) of the Code allows the court
to impose an extended term when a defendant is convicted of
reckless homicide involving the death of more than one individu-
al. 730 ILCS 5/5-5-3.2(b)(3) (West 1994). Further, in People v.
Compton, 193 Ill. App. 3d 896, 901, 550 N.E.2d 640, 643 (1990),
this court held that the fact that section 5-5-3.2 of the Code
(730 ILCS 5/5-5-3.2 (West 1994)) sets forth aggravating factors
that the trial court may consider in imposing an extended-term
sentence does not prohibit the court from considering such
factors in imposing a nonextended-term sentence.
Based upon the foregoing authority, we hold that multi-
ple deaths caused by a defendant convicted of reckless homicide
constitute an extreme degree of harm and as such may properly be
considered by the trial court as an aggravating factor in deter-
mining the exact length of a sentence when the court is not
otherwise considering the existence of multiple deaths to impose
an extended term pursuant to section 5-5-3.2 of the Code.
To hold otherwise would simply make no sense. As the
supreme court in Saldivar noted, "[t]he legislature clearly and
unequivocally intended that this varying quantum of harm [present
in any offense] may constitute an aggravating factor." Saldivar,
113 Ill. 2d at 269, 497 N.E.2d at 1143. Although we agree that
death is implicit in the offense of reckless homicide (see People
v. Allan, 231 Ill. App. 3d 447, 459, 595 N.E.2d 1317, 1327
(1992)), multiple deaths reflect an extreme degree of harm that a
trial court may consider in determining the severity of a partic-
ular sentence. Indeed, the legislature, in enacting section 5-5-
3.2(b)(3) of the Code (which clearly allows a trial court to
impose an extended term when it finds that a defendant convicted
of reckless homicide has caused more than one death), has recog-
nized that reckless homicide resulting in multiple deaths war-
rants a harsher penalty. 730 ILCS 5/5-5-3.2(b)(3) (West 1994).
Thus, when the court--as in the present case--imposes a sentence
that is not extended based on multiple deaths under section 5-5-
3.2(b)(3) of the Code, it must still be allowed to otherwise
consider the fact that defendant caused the multiple deaths.
In Compton, this court not only held that such consid-
eration was proper but also went out of its way to overrule an
earlier decision of this court (People v. Killen, 106 Ill. App.
3d 65, 67, 435 N.E.2d 789, 790 (1982)), that had held such
consideration to be improper. See Compton, 193 Ill. App. 3d at
900-01, 550 N.E.2d at 642-43. We also note that Compton is
consistent with decisions from our sister districts which have
considered this issue (see People v. Butts, 135 Ill. App. 3d 132,
135, 481 N.E.2d 987, 989 (1985) (fifth district, declining to
follow Killen); People v. Jorgensen, 182 Ill. App. 3d 335, 342-
43, 538 N.E.2d 758, 762-63 (1989) (second district, agreeing with
Butts and declining to follow Killen); People v. Fercsi, 221 Ill.
App. 3d 768, 771, 583 N.E.2d 33, 35 (1991) (first district, de-
clining to follow Killen and noting that Killen had "been repeat-
edly rejected"); and People v. Posedel, 214 Ill. App. 3d 170,
184-85, 573 N.E.2d 256, 267 (1991) (second district, reaffirming
Jorgensen's "express rejection" of Killen)), and we are aware of
none agreeing with Killen.
Given the obvious policy considerations favoring the
trial court's being as fully informed as possible when it imposes
sentence (see People v. Anderson, 284 Ill. App. 3d 708, 714, 672 N.E.2d 1314, 1318 (1996)), we find no justification for conclud-
ing that the sentencing court may consider the aggravating
factors in section 5-5-3.2(b) of the Code (730 ILCS 5/5-5-3.2(b)
(West 1994)) only when the court imposes an extended-term sen-
tence and may not consider these factors at all when imposing a
nonextended-term sentence. To hold otherwise would mean that a
court imposing a nonextended-term sentence could not consider at
sentencing that (1) the defendant committed a felony against a
person under 12 years of age or who had a physical handicap (730
ILCS 5/5-5-3.2(b)(4)(i), (b)(4)(iii) (West 1994)) or (2) in a
rape case, the defendant participated in a gang rape (730 ILCS
5/5-5-3.2(b)(5) (West 1994)). Clearly, the legislature could not
have intended these absurd results.
In this case, the trial court sentenced defendant to 14
years in prison pursuant to section 9-3(e) of the Criminal Code
of 1961 (Criminal Code) (720 ILCS 5/9-3(e) (West 1994)) whereby
the offense of reckless homicide is enhanced from a Class 3 to a
Class 2 felony when the State proves beyond a reasonable doubt
that a defendant was under the influence of alcohol or other
drugs at the time of the offense. Section 9-3(e) of the Criminal
Code also elevates the penalty range under such circumstances--
not less than 3 years and not more than 14 years. 720 ILCS 5/9-
3(e) (West 1994). Thus, we conclude that the court properly
considered the existence of multiple deaths as an aggravating
factor where it did not impose an extended term based upon those
multiple deaths.
2. Prior Adjudications of Defendant's Guilt in DUI Cases
Defendant next argues that the trial court erred by
considering "the factor of alcohol use as an aggravating factor
where the statutory sentencing scheme for the offense was already
enhanced due to alcohol use." We disagree.
Defendant mischaracterizes the trial court's comments
at sentencing. The court then discussed the last factor--namely,
deterrence. Viewing those comments in context, the second factor
to which the court referred was clearly not the fact that defen-
dant was driving under the influence at the time of the offense.
Rather, the court took notice of defendant's two prior DUI
supervisions--a factor the court may properly consider in aggra-
vation. See 730 ILCS 5/5-5-3.2(a)(3) (West 1994).
3. Deterrence
Last, defendant contends that the trial court erred by
considering deterrence as an aggravating factor. Defendant
specifically contends that deterrence is not a proper aggravating
factor because the offense of reckless homicide "implicates the
mental state of recklessness, and not intent." We reject
defendant's contention.
In People v. Huber, 144 Ill. App. 3d 195, 197, 494 N.E.2d 770, 771 (1986), this court addressed the issue of deter-
rence as it relates to reckless homicide and wrote the following:
"Defendant argues essentially that one
cannot deter reckless conduct. *** This
argument fails when one considers that by
definition recklessness includes the con-
scious disregard of a substantial and unjus-
tifiable risk that a result will follow from
one's actions. [Citation.] In People v.
Horstman (1981), 103 Ill. App. 3d 17, 22, 430 N.E.2d 523, 527, the court noted that the
prospect of a prison sentence is more likely
to be an effective deterrent in reckless
homicide cases where normally law[-]abiding
citizens decide to drive after becoming in-
toxicated. We agree."
We reaffirm our holding in Huber. Further, we note that the
offense of reckless homicide involving DUI is not only
deterrable, it is one of the most deterrable offenses because of
the drinking required--and the time this drinking requires--
before the drinker becomes drunk. Typically, the potential DUI
defendant--sip by sip, swallow by swallow, drink by drink--
becomes intoxicated with the full understanding and expectation
that, at some point, he will get behind the steering wheel, drive
drunk, and perhaps kill someone.
Thus, it is entirely appropriate for the trial court--
as the court did here--to speak in terms of deterrence (when a
person chooses to drive drunk, he does not know whether anyone
will be hurt, but if he kills people, he will be punished) when
sentencing a defendant for reckless homicide. Accordingly, we
conclude that the court did not err by considering deterrence as
an aggravating factor.
In so concluding, we note that the present case is far
different from People v. Martin, 119 Ill. 2d 453, 458, 519 N.E.2d 884, 886-87 (1988), the only case defendant cites in support of
his contention. In Martin, defendant's employer instructed her
to get a shotgun after some customers began fighting with the
employer. Defendant retrieved the gun, brought it back to the
scene of the fight, and the gun accidentally discharged, killing
the victim. The supreme court held that deterrence "has, at
best, marginal applicability to the circumstances surrounding the
offense [of involuntary manslaughter because] it is exceedingly
difficult to deter unintentional conduct." Martin, 119 Ill. 2d
at 459, 519 N.E.2d at 887. As we earlier discussed, reckless
homicide involving DUI--unlike involuntary manslaughter--involves
conscious choices and intentional conduct.
Under the circumstances of this case, we agree with the
trial court's conclusion that defendant's post-conviction peti-
tion is patently without merit. Accordingly, we affirm.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
McCULLOUGH and KNECHT, JJ., concur.
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
MARK MARTIN, ) No. 93CF27
Defendant-Appellant. )
) Honorable
) Stuart H. Shiffman,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In April 1991, defendant, Mark Martin, struck and
killed three pedestrians while driving his pickup truck. In
January 1993, a jury found defendant guilty of three counts of
reckless homicide (Ill. Rev. Stat. 1991, ch. 38, par. 9-3(a)),
two counts of driving while under the influence of alcohol (DUI)
(Ill. Rev. Stat. 1991, ch. 95«, pars. 11-501(a)(1), (a)(2)), and
one count of leaving the scene of an accident (Ill. Rev. Stat.
1991, ch. 95«, par. 11-401(a)). In March 1993, the trial court
sentenced defendant to 14 years in prison on each reckless homi-
cide conviction and 364 days on the leaving the scene of the
accident conviction, with all sentences to be served concurrent-
ly. Defendant appealed, and this court affirmed. See People v.
Martin, 266 Ill. App. 3d 369, 640 N.E.2d 638 (1994).
In February 1996, defendant filed a pro se petition for
post-conviction relief, alleging only that the trial court abused
its discretion by considering the deaths of the victims as an
aggravating factor at sentencing. The court subsequently dis-
missed defendant's petition as patently without merit pursuant to
section 122-2.1(a)(2) of the Post-Conviction Hearing Act (Act)
(725 ILCS 5/122-2.1(a)(2) (West 1994)). In its order of dismiss-
al, the court specifically found that (1) defendant's claim
failed to allege a constitutional violation; (2) defendant had
waived any claim regarding sentencing because he failed to raise
the issue on direct appeal; and (3) the court considered "all
appropriate factors" in imposing the sentence.
Defendant appeals, arguing that the trial court erred
by dismissing his post-conviction petition because it presented a
"meritorious claim" for relief due to a constitutional violation
--namely, that defendant's counsel on direct appeal provided
ineffective assistance by failing to raise the issue that the
court considered improper aggravating factors at sentencing.
We affirm.
I. POST-CONVICTION HEARING ACT
In People v. Henderson, 171 Ill. 2d 124, 131, 662 N.E.2d 1287, 1292 (1996), the supreme court discussed the general
rules regarding post-conviction proceedings, as follows:
"The [Act] provides a remedy for defendants
who have suffered a substantial violation of
their constitutional rights at trial. [Cita-
tion.] A post-conviction proceeding is not
an appeal of the underlying conviction; rath-
er, it is a collateral attack on the trial
court proceedings in which a defendant at-
tempts to establish constitutional violations
that have not been and could not have been
previously adjudicated. [Citation.] The
defendant bears the burden of establishing
that a substantial violation of his constitu-
tional rights occurred."
It is within this context that we address defendant's claim.
II. INEFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL
A. Waiver
Defendant argues that the trial court erred by dismiss-
ing his post-conviction petition because it presented a meritori-
ous claim that his counsel on direct appeal provided ineffective
assistance by failing to raise the issue that the court consid-
ered improper aggravating factors at sentencing. Defendant
specifically contends that even though his petition did not in
fact allege ineffective assistance of appellate counsel, it
should be viewed as presenting that claim because the waiver
doctrine is relaxed where "the alleged issue of ineffective
assistance of counsel stems from counsel on appeal." We dis-
agree.
In support of his relaxed waiver contention, defendant
relies on People v. Barnard, 104 Ill. 2d 218, 229, 470 N.E.2d 1005, 1008 (1984), and People v. Whitehead, 169 Ill. 2d 355, 371,
662 N.E.2d 1304, 1311-12 (1996). In Barnard, the defendant had
not raised on direct appeal the issue of trial counsel's compe-
tency; instead, he raised the issue for the first time in his
petition for leave to appeal to the supreme court. The supreme
court nonetheless addressed that issue and other trial errors (as
a matter of administrative convenience) "since defendant may
raise the question of trial counsel's competency [in a post-
conviction petition] under the [Act]." Barnard, 104 Ill. 2d at
229, 470 N.E.2d at 1008. In Whitehead, the supreme court held
that a post-conviction petition claim may survive the bar of
waiver when (1) the alleged waiver stems from ineffective assis-
tance of counsel on appeal; (2) "'where fundamental fairness so
requires'"; and (3) where the facts relating to the claim do not
appear on the face of the original appellate record. Whitehead,
169 Ill. 2d at 371-72, 662 N.E.2d at 1311-12, quoting People v.
Gaines, 105 Ill. 2d 79, 91, 473 N.E.2d 868, 875 (1984). In
Whitehead, the defendant's post-conviction petition actually
alleged that appellate counsel was ineffective for failing to
raise a certain issue on direct appeal.
The present case is far different from both Barnard and
Whitehead. Here, defendant's post-conviction petition never
mentions the issue of ineffective assistance of his counsel on
direct appeal. If this court accepted the position defendant
asserts, nothing would stop a defendant's counsel on appeal from
a dismissal of a post-conviction petition from combing the entire
record and raising new arguments--couched in terms of ineffective
assistance of counsel on direct appeal--for the sole purpose of
avoiding the application of res judicata and waiver.
In People v. Davis, 156 Ill. 2d 149, 163-64, 619 N.E.2d 750, 758 (1993), the supreme court addressed the related issue of
post-conviction counsel's duty to examine the record and wrote
the following:
"[I]t is the substance of the petitioner's
claims, in his initial post-conviction plead-
ing, which, in the first instance, determines
the fate of the petitioner's claims. The
post-conviction court's determination con-
cerning the merit of those claims is based
solely upon the petitioner's articulation of
the same.
Post-conviction counsel is only required
to investigate and properly present the peti-
tioner's claims. Had the legislature intend-
ed otherwise, it would, logically, have pro-
vided for the appointment of counsel prior to
the filing of the original petition. ***
[In a case where the post-conviction
court summarily dismisses an original peti-
tion for lack of merit], the court rules upon
the original petition based solely upon the
substance of the claims as presented by the
petitioner. No attorney is appointed, either
prior to or after the court's determination,
to examine the record for claims which could
have been, but were not, asserted. [(Empha-
sis added.)] Yet, it is conceivable that
substantial constitutional claims exist which
the petitioner, as a layperson, would not
have perceived. *** The post-conviction
court may, nonetheless, properly dismiss the
petition without regard to the existence of
such other claims." (Emphasis in original.)
We conclude that defendant--by wholly failing to make a
claim in his post-conviction petition that his counsel on direct
appeal provided ineffective assistance--has waived such a claim.
B. The Merits
Even assuming defendant had not waived his claim of
ineffective assistance of appellate counsel, we conclude that
defendant's counsel on direct appeal did not provide ineffective
assistance.
Claims of ineffective assistance of appellate counsel
are evaluated under the standard set forth in Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052
(1984). A defendant who contends that appellate counsel rendered
ineffective assistance by failing to argue a particular issue
must show that (1) "'the failure to raise that issue was objec-
tively unreasonable'" (performance component) and that, "'but for
this failure, his sentence or conviction would have been re-
versed'" (prejudice component). People v. Flores, 153 Ill. 2d 264, 283, 606 N.E.2d 1078, 1087 (1992), quoting People v. Cabal-
lero, 126 Ill. 2d 248, 270, 533 N.E.2d 1089, 1096 (1989). Fur-
ther, unless the underlying issues are meritorious, the defendant
obviously suffered no prejudice due to appellate counsel's
failure to raise them on direct appeal. People v. Coleman, 168 Ill. 2d 509, 523, 660 N.E.2d 919, 927 (1995).
Initially, we note that Lawrence Essig of the office of
the State Appellate Defender, who was appointed to represent
defendant on direct appeal, raised eight issues and argued each
issue thoroughly before this court. See Martin, 266 Ill. App. 3d
369, 640 N.E.2d 638; see also Coleman, 168 Ill. 2d at 523, 660 N.E.2d at 927, quoting People v. Collins, 153 Ill. 2d 130, 140,
606 N.E.2d 1137, 1142 (1992) (appellate counsel "'has no obliga-
tion to raise every conceivable argument which might be made, and
counsel's assessment of what to raise and argue will not be
questioned unless it can be said that his judgment in this regard
was patently erroneous'").
In addition, we conclude that had Essig raised on
direct appeal the issue that the trial court considered improper
aggravating factors at sentencing, it would not have mattered to
this court because the issue is not meritorious.
At the sentencing hearing in this case, the trial
court stated, in relevant part, the following:
"I've reviewed all the statutory aggra-
vating and mitigating factors. I have con-
sidered the material in the pre-sentence
report as I've indicated here this morning.
I have listened to the evidence presented
here today. I have listened to [defendant's]
statements, and although I've considered all
of the factors, I think there are three
things that perhaps bear some comment this
morning. The first one is, again, something
everyone here has mentioned this morning, and
that is that the [d]efendant's actions in
this case took three lives. For that conduct
alone, I think the [c]ourt would be warranted
in imposing a substantial punishment. Inter-
estingly enough, the [Unified Code of Cor-
rections (Code) (730 ILCS 5/1-1-1 et seq.
(West 1994))] allows the [c]ourt to impose in
other types of cases what we call extended
term penalty for the taking of multiple
lives, but in this case, [the legislature
has] already put the extended term provision
into the act of reckless homicide by allowing
a sentence of between three and 14 years when
this [c]ourt finds that someone is under the
influence of alcohol, and that's the second
factor I think that's very important to the
[c]ourt in connection with the case. Regard-
less of how you characterize them as super-
visions or convictions *** [defendant] has
had two prior DUI cases in court for which he
received supervision on two occasions. They
were separated by probation five or six years
and apparently the law allowed [defendant] to
receive supervision for the second offense.
*** [Defendant] is here before us with those
two occurrences on his record and certainly
if he learned nothing else, he should have
been aware of what the possible impact of
driving under the influence of alcohol might
have on himself or on others, and I think
that that leads us to the last factor, the
last point that the [c]ourt has to consider
***. *** [O]n any given day or any given
night *** in any place across the country,
there are hundreds of thousands of
[defendants] all over the place. They are
not bad people. They drink and they drive.
They leave the tavern and they get in their
car. Some of them get home without any prob-
lem. Some of them *** get stopped by a po-
lice officer and they get a ticket for driv-
ing under the influence of alcohol that af-
fects their lives to some extent. Some of
them hit a sign or a tree. Some of them
might have a personal injury accident where
no one is hurt very seriously and some of
them like [defendant] kill people on our
highways, and more than anything else, I
would hope that all of those [defendants],
those potential [defendants] who are in our
community[,] understand that if you perform
an act such as this and if you're one of the
unlucky ones whose conduct results in death,
then you must be prepared to face the penalty
that the law imposes, and in this case, it's
made even worse by the fact that it's three
deaths. Each death is important in its own
way, but there are three individuals who are
dead as a result of [defendant's] activities.
So if the message goes to the community[,] to
other potential people in the community, then
that's really all the [c]ourt can hope that
can be done in such a case as this."
1. Multiple Deaths As an Aggravating Factor
Defendant initially contends that the trial court erred
by considering the "end result" of defendant's conduct--namely,
the deaths of the three victims. Defendant claims that the
victims' deaths cannot be considered as an aggravating factor
because death is an element implicit in the offense of reckless
homicide. We disagree.
In People v. Saldivar, 113 Ill. 2d 256, 268-69, 497 N.E.2d 1138, 1143 (1986), quoting People v. Hunter, 101 Ill. App.
3d 692, 694, 428 N.E.2d 666, 668 (1981), the supreme court held
that
"[a] reasoned judgment as to the proper pen-
alty to be imposed must *** be based upon the
particular circumstances of each individual
case. [Citations.] Such a judgment depends
upon many relevant factors, including the
defendant's demeanor, habits, age, mentality,
credibility, general moral character, and
social environment [citations], as well as
'"the nature and circumstances of the of-
fense, including the nature and extent of
each element of the offense as committed by
the defendant"' [citations]." (Emphasis in
original.)
In so holding, the Saldivar court reasoned as follows:
"Sound public policy demands that a
defendant's sentence be varied in accordance
with the particular circumstances of the
criminal offense committed. Certain criminal
conduct may warrant a harsher penalty than
other conduct, even though both are techni-
cally punishable under the same statute.
Likewise, the commission of any offense,
regardless of whether the offense itself
deals with harm, can have varying degrees of
harm or threatened harm. The legislature
clearly and unequivocally intended that this
varying quantum of harm may constitute an
aggravating factor [(emphasis added)]. While
the classification of a crime determines the
sentencing range, the severity of the sen-
tence depends upon the degree of harm caused
to the victim and as such may be considered
as an aggravating factor in determining the
exact length of a particular sentence, even
in cases where serious bodily harm is argu-
ably implicit in the offense for which a
defendant is convicted. [Citations.]" (Em-
phasis in original.) Saldivar, 113 Ill. 2d
at 269, 497 N.E.2d at 1143.
In addition, section 5-5-3.2(b)(3) of the Code allows the court
to impose an extended term when a defendant is convicted of
reckless homicide involving the death of more than one individu-
al. 730 ILCS 5/5-5-3.2(b)(3) (West 1994). Further, in People v.
Compton, 193 Ill. App. 3d 896, 901, 550 N.E.2d 640, 643 (1990),
this court held that the fact that section 5-5-3.2 of the Code
(730 ILCS 5/5-5-3.2 (West 1994)) sets forth aggravating factors
that the trial court may consider in imposing an extended-term
sentence does not prohibit the court from considering such
factors in imposing a nonextended-term sentence.
Based upon the foregoing authority, we hold that multi-
ple deaths caused by a defendant convicted of reckless homicide
constitute an extreme degree of harm and as such may properly be
considered by the trial court as an aggravating factor in deter-
mining the exact length of a sentence when the court is not
otherwise considering the existence of multiple deaths to impose
an extended term pursuant to section 5-5-3.2 of the Code.
To hold otherwise would simply make no sense. As the
supreme court in Saldivar noted, "[t]he legislature clearly and
unequivocally intended that this varying quantum of harm [present
in any offense] may constitute an aggravating factor." Saldivar,
113 Ill. 2d at 269, 497 N.E.2d at 1143. Although we agree that
death is implicit in the offense of reckless homicide (see People
v. Allan, 231 Ill. App. 3d 447, 459, 595 N.E.2d 1317, 1327
(1992)), multiple deaths reflect an extreme degree of harm that a
trial court may consider in determining the severity of a partic-
ular sentence. Indeed, the legislature, in enacting section 5-5-
3.2(b)(3) of the Code (which clearly allows a trial court to
impose an extended term when it finds that a defendant convicted
of reckless homicide has caused more than one death), has recog-
nized that reckless homicide resulting in multiple deaths war-
rants a harsher penalty. 730 ILCS 5/5-5-3.2(b)(3) (West 1994).
Thus, when the court--as in the present case--imposes a sentence
that is not extended based on multiple deaths under section 5-5-
3.2(b)(3) of the Code, it must still be allowed to otherwise
consider the fact that defendant caused the multiple deaths.
In Compton, this court not only held that such consid-
eration was proper but also went out of its way to overrule an
earlier decision of this court (People v. Killen, 106 Ill. App.
3d 65, 67, 435 N.E.2d 789, 790 (1982)), that had held such
consideration to be improper. See Compton, 193 Ill. App. 3d at
900-01, 550 N.E.2d at 642-43. We also note that Compton is
consistent with decisions from our sister districts which have
considered this issue (see People v. Butts, 135 Ill. App. 3d 132,
135, 481 N.E.2d 987, 989 (1985) (fifth district, declining to
follow Killen); People v. Jorgensen, 182 Ill. App. 3d 335, 342-
43, 538 N.E.2d 758, 762-63 (1989) (second district, agreeing with
Butts and declining to follow Killen); People v. Fercsi, 221 Ill.
App. 3d 768, 771, 583 N.E.2d 33, 35 (1991) (first district, de-
clining to follow Killen and noting that Killen had "been repeat-
edly rejected"); and People v. Posedel, 214 Ill. App. 3d 170,
184-85, 573 N.E.2d 256, 267 (1991) (second district, reaffirming
Jorgensen's "express rejection" of Killen)), and we are aware of
none agreeing with Killen.
Given the obvious policy considerations favoring the
trial court's being as fully informed as possible when it imposes
sentence (see People v. Anderson, 284 Ill. App. 3d 708, 714, 672 N.E.2d 1314, 1318 (1996)), we find no justification for conclud-
ing that the sentencing court may consider the aggravating
factors in section 5-5-3.2(b) of the Code (730 ILCS 5/5-5-3.2(b)
(West 1994)) only when the court imposes an extended-term sen-
tence and may not consider these factors at all when imposing a
nonextended-term sentence. To hold otherwise would mean that a
court imposing a nonextended-term sentence could not consider at
sentencing that (1) the defendant committed a felony against a
person under 12 years of age or who had a physical handicap (730
ILCS 5/5-5-3.2(b)(4)(i), (b)(4)(iii) (West 1994)) or (2) in a
rape case, the defendant participated in a gang rape (730 ILCS
5/5-5-3.2(b)(5) (West 1994)). Clearly, the legislature could not
have intended these absurd results.
In this case, the trial court sentenced defendant to 14
years in prison pursuant to section 9-3(e) of the Criminal Code
of 1961 (Criminal Code) (720 ILCS 5/9-3(e) (West 1994)) whereby
the offense of reckless homicide is enhanced from a Class 3 to a
Class 2 felony when the State proves beyond a reasonable doubt
that a defendant was under the influence of alcohol or other
drugs at the time of the offense. Section 9-3(e) of the Criminal
Code also elevates the penalty range under such circumstances--
not less than 3 years and not more than 14 years. 720 ILCS 5/9-
3(e) (West 1994). Thus, we conclude that the court properly
considered the existence of multiple deaths as an aggravating
factor where it did not impose an extended term based upon those
multiple deaths.
2. Prior Adjudications of Defendant's Guilt in DUI Cases
Defendant next argues that the trial court erred by
considering "the factor of alcohol use as an aggravating factor
where the statutory sentencing scheme for the offense was already
enhanced due to alcohol use." We disagree.
Defendant mischaracterizes the trial court's comments
at sentencing. The court then discussed the last factor--namely,
deterrence. Viewing those comments in context, the second factor
to which the court referred was clearly not the fact that defen-
dant was driving under the influence at the time of the offense.
Rather, the court took notice of defendant's two prior DUI
supervisions--a factor the court may properly consider in aggra-
vation. See 730 ILCS 5/5-5-3.2(a)(3) (West 1994).
3. Deterrence
Last, defendant contends that the trial court erred by
considering deterrence as an aggravating factor. Defendant
specifically contends that deterrence is not a proper aggravating
factor because the offense of reckless homicide "implicates the
mental state of recklessness, and not intent." We reject
defendant's contention.
In People v. Huber, 144 Ill. App. 3d 195, 197, 494 N.E.2d 770, 771 (1986), this court addressed the issue of deter-
rence as it relates to reckless homicide and wrote the following:
"Defendant argues essentially that one
cannot deter reckless conduct. *** This
argument fails when one considers that by
definition recklessness includes the con-
scious disregard of a substantial and unjus-
tifiable risk that a result will follow from
one's actions. [Citation.] In People v.
Horstman (1981), 103 Ill. App. 3d 17, 22, 430 N.E.2d 523, 527, the court noted that the
prospect of a prison sentence is more likely
to be an effective deterrent in reckless
homicide cases where normally law[-]abiding
citizens decide to drive after becoming in-
toxicated. We agree."
We reaffirm our holding in Huber. Further, we note that the
offense of reckless homicide involving DUI is not only
deterrable, it is one of the most deterrable offenses because of
the drinking required--and the time this drinking requires--
before the drinker becomes drunk. Typically, the potential DUI
defendant--sip by sip, swallow by swallow, drink by drink--
becomes intoxicated with the full understanding and expectation
that, at some point, he will get behind the steering wheel, drive
drunk, and perhaps kill someone.
Thus, it is entirely appropriate for the trial court--
as the court did here--to speak in terms of deterrence (when a
person chooses to drive drunk, he does not know whether anyone
will be hurt, but if he kills people, he will be punished) when
sentencing a defendant for reckless homicide. Accordingly, we
conclude that the court did not err by considering deterrence as
an aggravating factor.
In so concluding, we note that the present case is far
different from People v. Martin, 119 Ill. 2d 453, 458, 519 N.E.2d 884, 886-87 (1988), the only case defendant cites in support of
his contention. In Martin, defendant's employer instructed her
to get a shotgun after some customers began fighting with the
employer. Defendant retrieved the gun, brought it back to the
scene of the fight, and the gun accidentally discharged, killing
the victim. The supreme court held that deterrence "has, at
best, marginal applicability to the circumstances surrounding the
offense [of involuntary manslaughter because] it is exceedingly
difficult to deter unintentional conduct." Martin, 119 Ill. 2d
at 459, 519 N.E.2d at 887. As we earlier discussed, reckless
homicide involving DUI--unlike involuntary manslaughter--involves
conscious choices and intentional conduct.
Under the circumstances of this case, we agree with the
trial court's conclusion that defendant's post-conviction peti-
tion is patently without merit. Accordingly, we affirm.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
McCULLOUGH and KNECHT, JJ., concur.
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