In re A.V.

                                             FIRST  DIVISION
                                             FILED: 12/02/96
                                   
                              
                                   

                                   
     


No. 1--95--1589

In re A.V., a Minor 
(The People of the State of Illinois,

                 Petitioner-Appellee,

     v.

A.V., a Minor,

                Respondent-Appellant).)
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Appeal from the
Circuit Court of
Cook County



Honorable
Richard Walsh,
Judge Presiding.

     JUSTICE BRADEN delivered the opinion of the court:
     Minor respondent, A.V., appeals from a March 2, 1995, order by
the circuit court of Cook County, finding him in violation of the
terms and conditions of his probation and sentencing him to
incarceration in the Department of Corrections.  On appeal, A.V.
argues that (1) defense counsel's failure to object to the
consolidation of his delinquency and probation revocation hearings
constituted ineffective assistance of counsel, and (2) that the 
trial court's determinations that he was not guilty on the
delinquency petition but guilty of the probation violation were
legally inconsistent and, therefore, not permissible under Illinois
law.
     We reverse and remand.
     On April 4, 1994, the State filed a petition for adjudication
of wardship, alleging that A.V. trespassed into and possessed a
stolen vehicle in violation of the Illinois Motor Vehicle Code. 
A.V. was subsequently adjudicated delinquent and sentenced to
probation for two years.  On December 19, 1994, A.V. was charged in
a delinquency petition with five criminal offenses arising from a
shooting incident including: aggravated battery, aggravated battery
with a firearm, attempt murder, aggravated discharge of a firearm,
and armed violence.  He also faced a petition charging him with
violation of the aforementioned probation.  
     On March 2, 1995, the court granted the State's motion to
consolidate the hearings on both the delinquency petition and the
violation of probation charges.  Defense counsel, consisting of two
Northwestern law students practicing under Supreme Court Rule 711
and two supervising attorneys from the Northwestern University
Legal Clinic, made no objection to the State's motion.  
     The trial court subsequently found A.V. not guilty of the
criminal charges alleged in the delinquency petition, finding that
the State failed to establish beyond a reasonable doubt that A.V.
was the shooter.  The trial court did find, however, that the State
had proved by a preponderance of the evidence that A.V. was the
shooter and that, as such, he had violated the terms and conditions
of his probation.  
     A.V. subsequently filed a motion for reconsideration, alleging
ineffective assistance of counsel.  In arguing their motion defense
counsel admitted that the State's motion to consolidate proceedings
took them by surprise.  The record indicates defense counsel
conceded they were proceeding under an assumption that the burden
in both proceedings was "beyond a reasonable doubt."  Defense
counsel conceded they were unaware that the State's burden of proof
in the probation revocation hearing was "by a preponderance of
evidence."  Defense counsel further conceded that if they had been
aware that the State's burden of proof was "by the preponderance"
they would have called additional alibi witnesses, and A.V. would
have testified in his own behalf.  
     In fact, defense counsel called only one witness, A.V.'s
father, to establish A.V's whereabouts at the time of the incident. 
A.V.'s father testified that A.V. was at home in bed at the time of
the shooting.  Defense counsel failed to call any additional
witnesses to corroborate the testimony of A.V.'s father.  
     The trial court denied A.V.'s motion for reconsideration
finding no right to separate adjudication of probation violations
and delinquency charges. 
     On appeal, A.V. argues that he received ineffective assistance
of counsel when defense counsel failed to object to a consolidation
hearing on both the State's petition to adjudicate his delinquency
and its petition to revoke his probation.  We agree.
     To prove ineffective assistance of counsel a defendant must
show that (1) counsel's performance fell below an objective
standard of reasonableness, and (2) but for counsel's performance
there is a reasonable probability that the result of the trial
would have been different.  Strickland v. Washington, 466 U.S. 668,
686, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2063 (1984).  The
right to effective assistance of counsel applies in juvenile, as
well as adult proceedings, and in probation hearings as well as
criminal trials.  In re F.N., 253 Ill. App. 3d 483, 491, 624 N.E.2d 853, 859 (1993). 
     A.V. relies on People v. Porter, 241 Ill. App. 3d 116, 118,
608 N.E.2d 1210, 1212 (1993), in which trial counsel's failure to
object to consolidation of a probation revocation proceeding and
the criminal jury trial was held to have fallen below the objective
standard of reasonableness.  In Porter, the defendant was charged
with unlawful delivery of a controlled substance.  Both the jury
trial on the criminal charges and a hearing on the State's petition
to revoke the defendant's probation were heard at the same time. 
Defense counsel did not object.  The trial court noted that it
would rule on the petition to revoke probation after the jury
delivered its verdict on the underlying criminal charge.  The jury
subsequently returned a verdict of not guilty for the offense of
unlawful delivery of a controlled substance.  However, after the
jury was excused, the trial judge found that the State had proved
the allegations in the petition by a preponderance of the evidence
and ordered the defendant's probation revoked.  
     On appeal, the defendant argued that his trial counsel was
ineffective for failing to object to consolidation of the jury
trial with the hearing on the petition to revoke probation.  The
appellate court agreed with the defendant's argument in finding
that he received ineffective assistance of counsel.  In reaching
this holding, the Porter court reasoned that had defense counsel
objected to consolidation of the two proceedings, there was a
reasonable probability that the result would have been different. 
Porter, 241 Ill. App. 3d at 118, 608 N.E.2d  at 1212.  The Porter
court noted the jury determined that the defendant did not deliver
the cocaine, while the trial judge determined that the defendant
did deliver the cocaine.  Porter, 241 Ill. App. 3d at 118, 608 N.E.2d  at 1212.  The Porter court held that whether the defendant
delivered cocaine was the only material issue of fact in dispute
and that the trial court's finding was a differing determination on
the same issue of ultimate fact.  Porter, 241 Ill. App. 3d at 118,
608 N.E.2d  at 1212.  
     Relying on People v. Grayson, 58 Ill. 2d 260, 319 N.E.2d 43
(1974), the Porter court reasoned that had the defendant been
acquitted of the underlying offense first, the proceeding
concerning the probation revocation would have been barred by the
principle of collateral estoppel.  Porter, 241 Ill. App. 3d at 118,
608 N.E.2d  at 1212.  Therefore, the Porter court found that defense
counsel was ineffective, because had counsel objected to the
consolidation of the two proceedings, there was a reasonable
probability that the result would have been different.   
     Here, defense counsel's failure to object to the consolidation
of the delinquency and violation of parole hearings fell below an
objective standard of reasonableness as defined in Porter,
especially where (1) defense counsel was admittedly unaware of the
"preponderance of evidence" burden of proof in a revocation of
probation proceeding; (2) defense conceded that if they had been
aware they would have called additional alibi witnesses, and A.V.
would have testified in his own behalf; and (3) defense counsel
failed to call additional witnesses to corroborate the testimony of
their only witness, A.V.'s father.    
     The State argues that respondent's attorneys knew and
understood the applicable standards of proof at the consolidated
hearing.  We disagree.
     Here, it is presumptuous to assume the defense lawyers in this
case knew that the standard of proof for a probation violation was
a preponderance of the evidence.  Counsel for defendant consisted
of two third-year law students with limited experience in the
actual practice of criminal law, participating in the trial under
the provisions of Supreme Court Rule 711, and supervised by two
attorneys from the Northwestern University Legal Clinic.  
     The State contends the record unequivocally shows that counsel
were aware of the different standards of proof and had stipulated
to the hearing of the violation of probation and the substantive
charge, simultaneously.  We agree that counsel may have ultimately
known the different standards of proof, but we disagree as to when
they became aware of such distinction.  
     The State further argues that defense counsel comments during
closing arguments evidenced such understanding.  The issue,
however, is not whether they knew the distinction at the conclusion
of the hearing but whether they were cognizant of such at the
inception of the proceedings.  To conclude that they made a
tactical decision to try the substantive charge and the probation
violation at the same time is speculative and simply not supported
by the record.  
     The State references specific comments made by defense counsel
during closing argument which do not conclusively indicate that
they fully understood the different standards of proof.  
     It is difficult to support such a position where the record
indicates that defense counsel, practicing under Supreme Court Rule
711, conceded they were proceeding under an assumption that the
burden in both proceedings was "beyond a reasonable doubt."  It is
also unreasonable to suggest or to assume that defense counsel
would fabricate a lack of knowledge as to the distinction between
the respective burdens of proof, while at the same time arguing
such distinction during closing argument.  If they were fabricating
such a lack of knowledge, it would be more rational that they would
be consistent in this deception by not articulating their knowledge
of the distinction during closing argument.  
     Under Illinois law, a lawyer is an officer of the court and
has an obligation to be truthful to the court as well as a duty of
good faith and candor in dealing with the judiciary.  City of
Chicago v. Higginbottom, 219 Ill. App. 3d 602, 628, 579 N.E.2d 890,
907 (1991).  Here, defense counsel conceded they were unaware that
the State's burden of proof in the probation revocation hearing was
"by a preponderance of the evidence" and if they had been aware
that the State's burden of proof was "by the preponderance" they
would have called additional alibi witnesses, including A.V. who
would have testified in his own behalf.  Clearly, the conduct of
two law students practicing under Supreme Court Rule 711 could not
be characterized as a purposeful strategy designed to succeed on
all charges in a single proceeding.  Counsel's failure to object to
the consolidation of the delinquency and violation of parole
hearings fell below an objective standard of reasonableness as
defined in People v. Porter, 241 Ill. App. 3d 116, 608 N.E.2d 1210
(1993).  
     There was also a reasonable probability that, but for the
performance of defense counsel, the result would have been
different.  People v. Stewart, 217 Ill. App. 3d 373, 577 N.E.2d 175
(1991).  If defense counsel had objected to consolidation of the
proceedings, the State would have had to elect to proceed on either
the criminal charge or the petition for revocation of probation. 
If the State had elected to first proceed on the underlying
criminal charge and A.V. was acquitted of such charge, as he was in
the consolidated proceeding, then, under the principles set forth
in People v. Grayson, 58 Ill. 2d 260, 319 N.E.2d 43 (1974) and its
progeny, the State would have been prevented from relitigating the
same issues in a later probation revocation proceeding.
     The State argues that it would have elected to proceed on the
petition to revoke A.V.'s probation first and that A.V. would have
been found guilty, as in the consolidated proceeding.  Therefore,
the State argues, it would not have been collaterally estopped from
subsequently proceeding against A.V. on the criminal charges.  This
argument is unpersuasive.  The State's argument assumes in
hindsight that it would have elected to first proceed on the
probation revocation hearing.  One could just as easily argue to
the contrary and reach an opposite conclusion.  Accordingly,
defense counsel was ineffective, because had they objected to the
consolidation of the two proceedings, there was a reasonable
probability that the result would have been different.
     The next issue on appeal is whether the trial court's rulings
were legally inconsistent and, therefore, not permissible under
Illinois law.  Here, we need not address this issue where we have
determined that A.V. received ineffective assistance of counsel.
     For the foregoing reasons, we reverse the decision of the
circuit court of Cook County and remand the cause for a new
hearing.
     Reversed and remanded.
     BUCKLEY, J., concurs.
     WOLFSON, J., dissents.

     JUSTICE WOLFSON, dissenting:
     In People v. Porter, 241 Ill. App. 3d 116, 608 N.E.2d 1210
(1993), defense counsel did not object to the State's motion to
try a heroin charge and a petition to revoke probation at the
same time.  The heroin charge was tried before a jury.  The
violation of probation was heard by the judge.  The jury said not
guilty, the trial judge found a violation of probation.  The
court held defense counsel was ineffective, "***because had he
objected to the consolidation of the two proceedings, there was a
reasonable probability that the result would have been
different."  The probation violation finding was reversed.
     The minor relies on Porter and the constitutional guarantee
of effective assistance of counsel established in Strickland v.
Washington, 466 U.S. 668, 88 L. Ed. 2d 674, 104 S. Ct. 2052
(1984) (To be ineffective counsel's representation must fall
below an objective standard of reasonableness and there must be a
reasonable probability that but for counsel's unprofessional
errors the result would have been different).
     I do not believe the Porter court intended to set the stage
for purposeful stratagems that would degrade the salutary
principles established in Strickland.
     A.V. calls our attention to the minor's lawyers' statements
at the motion to reconsider.  There, the lawyers said they did
not know the preponderance standard applied to probation 
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revocation proceedings.  They said they believed the standard was
beyond a reasonable doubt in both proceedings.
     It would be ineffective assistance of counsel if A.V.'s
lawyers had not understood the differences in the standard of
proof.  Not only did Grayson set out those differences, but other
courts have held that because of the differences in the standard
of proof there is no constitutional impediment to a finding of
not guilty on a substantive charge and a finding of guilty on a
probation violation charge in a single proceeding.  See People v.
Motta, 223 Ill. App. 3d 182, 584 N.E.2d 503 (1991); In re N.R.L.,
200 Ill App. 3d 820, 558 N.E.2d 538 (1990).
     In this case, during final argument, defense counsel was
commenting on the ability of a witness to see the offender:
          "That is, there is not a 50 per cent chance she
     had seen the offender, but the standard is beyond a
     reasonable doubt.  There are grave doubts about that
     identification.
     [Prosecutor]: We are also--Objection.  We are also
     hearing violation of probation.  That is the stip.
     The Court: I am aware of that.  This is argument.
     [Defense Counsel]: Your Honor, we note that the
     violation of probation is preponderance thing [sic].
     What I said before doesn't add up the 50 per cent.
     That is exactly true, and therefore it is not
     preponderance."
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     A few moments later, referring to the identification
witnesses as "incredible," the defense lawyer argued:
          "I don't think that is beyond a reasonable doubt.
     I don't think that is preponderance for the violation
     of probation here."
     I do not read the defense lawyer's comments as reflecting
the least surprise or any lack of understanding about the
standards of proof that applied to the consolidated charges.  I
believe the defense lawyers' carefully considered and reasonable
goal was to succeed on all charges in a single proceeding.  It is
unlikely that the case would have been defended any differently
had the substantive, more serious offenses been tried first.  The
strategy was not successful, but I do not presume ineffectiveness
of counsel simply because of a lack of success.
     By following Porter in this case we are saying that defense
counsel has an affirmative duty to object to consolidation in all
instances, or face a successful claim of ineffectiveness.  A
purposeful failure to object would plant reversible error in any
consolidated hearing.
     I do not believe a consolidated hearing should be conducted
over the objection of the accused.  On the other hand, a defense
lawyer would not be motivated to object to consolidation if
assured his or her silence meant that no conviction could stand.
     A finding that failure to object to consolidation is
ineffectiveness of counsel in all instances makes little sense.  
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In Porter, and here, the accused was acquitted of the substantive
charges and convicted of the probation violation charge.  But
what if A.V. had been convicted of all charges?  Surely, Grayson
and Porter would be of no avail to A.V. on appeal.  The question
of whether counsel was ineffective cannot be left to hindsight. 
I believe that Porter does not apply to the circumstances of this
case.  The decision to proceed on all charges at the same time in
this bench trial was a matter of strategy and did not sink to the
level of ineffective assistance of counsel.  I respectfully
dissent.















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