People v. Angarola

Nos. 2--07--0396 & 2--07--1062 cons. Filed: 1-6-09
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, )
)
v. ) No. 06--CF--1499
)
ROBERT ANGAROLA, ) Honorable
) George J. Bakalis,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE O'MALLEY delivered the opinion of the court:

In case No. 2--07--0396, defendant, Robert Angarola, appeals from his convictions, after a

bench trial, of two counts of forgery and one count of deceptive practices. He argues that (1) his

counsel provided ineffective assistance by conceding defendant's guilt of forgery; (2) his conviction

of deceptive practices, and his second conviction of forgery, must be vacated under the one-act, one-

crime rule; and (3) his conviction of deceptive practices must be reversed because the statute

governing the offense contains an unconstitutional presumption. In case No. 2--07--1062, defendant

appeals the trial court's first-stage dismissal of a postconviction petition he filed after his attorney

failed to file a notice of appeal in case No. 2--07--0396. For the reasons that follow, we affirm

defendant's forgery convictions, but we vacate his conviction of deceptive practices and remand the

cause for resentencing based on the proper convictions. We affirm the trial court's first-stage

dismissal of his postconviction petition.
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Defendant was charged with two counts of forgery (720 ILCS 5/17--3(a)(1), (a)(2) (West

2006)), two counts of theft by deception (720 ILCS 5/16--1(a)(2) (West 2006)), and one count of

deceptive practices (720 ILCS 5/17--1(B)(d) (West 2006)) in connection with an incident in which

he was alleged to have used his father's checking account to purchase a truck. The evidence at

defendant's trial, which included a taped confession from defendant, indicated that defendant

purchased a truck from a car dealership with a check from his father's checkbook, without his father's

permission. (Defendant and his father have the same name.) According to testimony from a police

officer who interviewed defendant, defendant told the officer that he wrote the check knowing that

there were insufficient funds in his father's account to cover the truck purchase; however, defendant

testified that he meant to tell the officer that he knew at the time of the interview, but not at the time

he wrote the check, that the funds were insufficient. In interviews with police, defendant explained

that he anticipated receiving a disability settlement that would cover the check. However, after the

check was returned for insufficient funds, defendant was forced to return the truck to the dealership.

During closing arguments, defense counsel conceded defendant's guilt of forgery but argued

that defendant was not guilty of theft or of deceptive practices. The trial court found defendant guilty

of deceptive practices and of both counts of forgery. However, the trial court found him not guilty

of theft, because it found that there was insufficient evidence of his intent to permanently deprive the

dealership of the truck. The trial court entered a written order stating that defendant was guilty of

deceptive practices and two counts of forgery. However, in its written order after a sentencing

hearing, the trial court indicated that defendant was convicted of one count each of theft, forgery, and

deceptive practices, and it imposed three concurrent six-year terms of imprisonment.

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Defendant filed neither a postjudgment motion nor a notice of appeal within 30 days of the

trial court's sentencing order. See 210 Ill. 2d R. 606(b) (notice of appeal must be filed within 30 days

of final order or the ruling on timely postjudgment motion). However, within six months of the

expiration of the 30-day window for appeal, defendant filed a motion with this court to file a late

notice of appeal. See 210 Ill. 2d R. 606(c) (allowing for late notice of appeal). We granted the

motion, and the appeal was docketed as case No. 2--07--0396.

On the same day that he filed his motion to file a late notice of appeal, defendant filed a

petition for relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq.

(West 2006)). In his petition, defendant argued, among other things, that trial counsel was ineffective

for failing to file a notice of appeal. The trial court found that the petition failed to state the gist of

a constitutional claim and thus dismissed the petition before appointing an attorney to represent

defendant in postconviction proceedings. With respect to the allegation that counsel failed to file a

notice of appeal, the trial court deemed the issue "moot[,] as petitioner's appeal has been accepted

by the Appellate Court." Defendant appealed, and we docketed the appeal as case No. 2--07--1062.

We later consolidated both of defendant's appeals for decision.

Defendant's first argument in case No. 2--07--0396 is that his counsel provided him ineffective

assistance by conceding his guilt of the forgery counts. A defendant's right to effective assistance of

counsel is provided by the sixth and fourteenth amendments to the United States Constitution. U.S.

Const., amends. VI, XIV; People v. Conley, 118 Ill. App. 3d 122, 127 (1983). Normally, courts

evaluate the question of whether a defendant was denied effective assistance of counsel in accordance

with the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d

674, 693, 104 S. Ct. 2052, 2064 (1984). To prevail on a claim of ineffective assistance under the

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Strickland test, a defendant must show that (1) counsel's performance fell below an objective standard

of reasonableness and (2) the deficient performance so prejudiced the defense as to deny the

defendant a fair trial. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693,104 S. Ct. at 2064.

"However, the court in Strickland also noted that there are some circumstances so likely to prejudice

the accused that such prejudice need not be shown, but instead will be presumed." People v. Hattery,

109 Ill. 2d 449, 461 (1985), citing Strickland, 466 U.S. at 692, 80 L. Ed. 2d at 696, 104 S. Ct. at

2067. Those circumstances include cases in which there is a complete denial of counsel as well as

cases in which "counsel entirely fails to subject the prosecution's case to meaningful adversarial

testing." United States v. Cronic, 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047

(1984). Our supreme court has held that a defense attorney's concession of his client's guilt can

constitute a failure to subject the prosecution's case to meaningful adversarial testing and thus amount

to a deprivation of the constitutional right to effective assistance of counsel. See Hattery, 109 Ill. 2d

at 460-65.

In Hattery, the defendant pleaded not guilty to a murder charge, but, during opening

statements, one of his trial attorneys told the jury that "[the defense was] not asking [the jury] to find

[the defendant] not guilty" but rather was asking the jury to find him ineligible for the death penalty.

Hattery, 109 Ill. 2d at 458-59. During the guilt-innocence phase of the trial, the defense presented

evidence that could mitigate the defendant's sentence, but it presented no evidence to defend against

the charge of murder. Hattery, 109 Ill. 2d at 459. The supreme court held that the defendant's

attorneys' representation was ineffective under the rule from Cronic, because the attorneys pursued

a strategy--conceding guilt and arguing against the imposition of the death penalty--that was "totally

at odds with [the] defendant's earlier plea of not guilty." Hattery, 109 Ill. 2d at 464. The supreme

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court held that "[c]ounsel may not concede his client's guilt in the hope of obtaining a more lenient

sentence where a plea of not guilty has been entered, unless the record adequately shows that [the]

defendant knowingly and intelligently consented to his counsel's strategy." Hattery, 109 Ill. 2d at

465.

The supreme court later limited the reach of Hattery and explained that it did not in that case

"hold that it is per se ineffectiveness whenever the defense attorney concedes his client's guilt to

offenses in which there is overwhelming evidence of that guilt but fails to show on the record consent

by [the] defendant." People v. Johnson, 128 Ill. 2d 253, 269 (1989). Instead, the court in Johnson

emphasized that a defendant "faces a high burden before he can forsake the two-part Strickland test"

and held that Hattery "must be narrowly construed." Johnson, 128 Ill. 2d at 269, 270. Thus, the

court declined to apply the holding from Hattery to a case in which the defendant's counsel conceded

his client's guilt of a murder charge but did not concede his client's guilt of related charges:

"It was admitted that the defendant killed [one victim], shot the other victims and took

personal property. However, with two of the victims living to testify and a confession by the

defendant, the evidence as to these acts was overwhelming. In situations where there is

overwhelming evidence of guilt and no defense, if counsel contests all charges he is liable to

lose credibility with the trier of fact when it comes to the charges where a legitimate defense

exists. Though concession of the murder was made, going to trial did preserve for the

defendant matters that a guilty plea necessarily would have waived. Counsel did not concede

each element of attempted murder, felony murder, armed violence, aggravated battery, armed

robbery, theft and unlawful restraint. *** Unlike Hattery, counsel did not abandon 'even the

pretense' of defending his client." Johnson, 128 Ill. 2d at 270.

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Defendant asserts that Cronic and Hattery should govern here. Defendant acknowledges that

an attorney may in most cases reasonably concede his client's guilt of some but not all charges, but

defendant argues that counsel's concession here was tantamount to a concession of his entire case.

According to defendant, under the one-act, one-crime rule, he could be convicted of only one of the

five charges against him. Defendant asserts that, because forgery was the most serious charge against

him, any convictions of theft and deceptive practices would necessarily merge into a forgery

conviction. Thus, defendant urges, when his counsel conceded his guilt of forgery, counsel conceded

his guilt of the most serious offense, and any defenses to the lesser charges, which would be merged

and thus have no legal effect, were meaningless. Defendant concludes from the above that counsel

provided no serious challenge to the State's case.

The State disputes defendant's premise: it argues that a conviction of theft would not have

merged into a forgery conviction under the one-act, one-crime rule. Accordingly, the State contends

that counsel's decision to concede guilt on the forgery counts but preserve a defense against the theft

counts did not amount to the type of deprivation of counsel described in Cronic and Hattery.

Defendant does not respond to this point.

We agree with the State that defendant could have been convicted of both theft and forgery

under the one-act, one-crime rule. The purpose of the one-act, one-crime rule, adopted in People v.

King, 66 Ill. 2d 551 (1977), is to prevent the State from carving out multiple offenses from the same

culpable conduct. See People v. Harvey, 211 Ill. 2d 368, 389 (2004). The rule provides that a

defendant may not be convicted of multiple crimes based on the same physical act. King, 66 Ill. 2d

at 566. For purposes of the one-act, one-crime rule, a single act is any overt or outward

manifestation that will support a different offense. King, 66 Ill. 2d at 566. As long as there are

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multiple acts as defined in King, their interrelationship does not preclude multiple convictions. People

v. Rodriguez, 169 Ill. 2d 183, 189 (1996).

In order to secure a conviction of forgery as charged, the State was required to prove beyond

a reasonable doubt that, with the intent to cause another to transfer, alter, or terminate any right or

power over property (720 ILCS 5/17--3(b) (West 2006)), defendant knowingly either (1) made or

altered a document so that it appeared to have been made by another or with another's authority (720

ILCS 5/17--3(a)(1) (West 2006)) or (2) issued or delivered such a document with knowledge of its

lack of authenticity (720 ILCS 5/17--3(a)(2) (West 2006)). The overt acts supporting the charges

of forgery were defendant's creating the check, represented it as his own, and tendering the check to

the dealership, with the intent to obtain the truck. In order to secure a conviction of theft, the State

was required to prove beyond a reasonable doubt that defendant knowingly "[o]btain[ed] by

deception control over property of the owner." 720 ILCS 5/16--1(a)(2) (West 2006). The overt act

that would have supported a theft conviction would have been defendant's taking control of the truck.

This was an act separate from the acts of creating and tendering the check. Cf. People v. McCreary,

123 Ill. App. 3d 880, 884 (1984) (one-act, one-crime rule allows convictions of burglary and theft

because they are supported by separate acts, even though burglary is defined as unlawful entry with

intent to commit a theft).

Based on the above, we conclude that the one-act, one-crime rule would not have precluded

defendant's being convicted of both forgery and theft. Accordingly, we disagree with defendant's

position that his counsel's conceding his guilt of forgery but preserving a defense to theft served no

possible purpose, and we further disagree with defendant that his counsel's concession amounted to

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a failure to subject the State's case to adversarial testing. We therefore reject defendant's argument

that he was deprived of effective assistance of counsel.

Defendant second argues that his conviction of deceptive practices must be vacated under the

one-act, one-crime rule because it is based on the same act as his forgery conviction. The State

concedes that defendant is correct under the one-act, one-crime rule as it is currently articulated, but

it asks that we hold this appeal in abeyance while the supreme court considers a case in which the

State urges departure from the one-act, one-crime rule. See People v. Artis, 377 Ill. App. 3d 216

(2007), appeal allowed, 226 Ill. 2d 618 (2008). We decline the State's invitation. As defendant

notes, our supreme court has repeatedly reaffirmed the doctrine. See, e.g., Harvey, 211 Ill. 2d at 368;

People v. Lee, 213 Ill. 2d 218 (2004). Until the supreme court departs from the one-act, one-crime

rule, we will follow it. The application of the rule here dictates that defendant's deceptive practices

conviction be vacated.

Defendant further argues that the one-act, one-crime rule precludes his multiple convictions

of forgery. We encounter difficulty on this point, because the record is inconsistent as to the offenses

of which defendant was convicted. Directly after the bench trial on this matter, the trial court stated

(in open court and in a written order) that defendant was guilty of two counts of forgery and one

count of deceptive practices. However, the sentencing order indicates sentences based on one

conviction each of forgery, theft, and deceptive practices, and an inmate status report contained in

the record on appeal in case No. 2--07--1062 indicates convictions of forgery, theft, and deceptive

practices.

The parties appear to agree that the trial court's order directly after trial reflected its true

intent. In its brief, the State urges us to "affirm both forgery convictions" and thus assumes that the

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trial court's first order is controlling. In his brief, defendant states that "the trial court clearly erred

when it indicated on the sentencing order that it had convicted [defendant] of theft rather than a

second count of forgery." We agree with the parties, and we therefore address the question of

whether two convictions of forgery were proper under the one-act, one-crime rule.

As noted, the State charged defendant with forgery under two separate provisions of the

Criminal Code of 1961 (Code). The first charge, under section 17--3(a)(1) of the Code (720 ILCS

5/17--3(a)(1) (West 2006)), required proof that defendant made or altered a document in such a

manner that it purported to have been made by another or by the authority of one who did not give

such authority. The second charge, under section 17--3(a)(2) of the Code (720 ILCS 5/17--3(a)(2)

(West 2006)), required proof that defendant issued or delivered such a document knowing it to have

been so made or altered.

Defendant and the State have both found Illinois case law to support their respective

positions. Defendant directs us to People v. Oliva, 30 Ill. App. 3d 194 (1975). There, the defendant

was convicted under previous versions of sections 17--3(a)(1) and 17--3(a)(2), but the State

conceded that only one of the two convictions could stand. Oliva, 30 Ill. App. 3d at 194-95.

Without any further discussion of the issue, the court reversed and remanded the cause with

directions to vacate one of the two convictions. Oliva, 30 Ill. App. 3d at 195. Because it offers no

discussion on the issue now presented, and because its holding was based on a concession from the

State, we take very limited guidance from Oliva.

For its part, the State directs us to People v. Horrell, 381 Ill. App. 3d 571 (2008), appeal

allowed, 229 Ill. 2d 642 (2008). In Horrell, the defendant argued, just as defendant here argues, that

the one-act, one-crime rule does not allow an accused to be convicted of forgery under both section

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17--3(a)(1) and section 17--3(a)(2). Horrell, 381 Ill. App. 3d at 573. After summarizing the one-act,

one-crime rule, and stating the standards governing a court's interpretation of a statute, the court

concluded that the one-act, one-crime rule allowed both convictions:

"[T]he defendant was charged under section 17--3(a)(1) with the physical act of making the

checks. Under section 17--3(a)(2), the defendant was charged with the separate physical act

of delivering the forged checks. The act of making the checks was a different outward or

overt manifestation from the act of delivering the checks. These separate physical acts

support different offenses." Horrell, 381 Ill. App. 3d at 574.

Defendant criticizes Horrell on two grounds. First, defendant argues that the court erred in

relying on the rules for statutory interpretation, because, according to defendant, "the question of

one-act, one-crime is not concerned with legislative intent." We do not agree with this criticism.

Horrell relied on rules for statutory construction not because the text of the statute alone, without

reference to the particular act or acts involved in the case, controls the one-act, one-crime analysis.

Rather, Horrell cited those rules because it had to interpret the meaning of the two provisions of the

forgery statute in order to determine whether both provisions could support convictions based on the

separate acts of creating and delivering fake checks. We consider this method of analysis appropriate.

Second, in an argument somewhat contradictory to his first criticism of Horrell, defendant

asserts that the legislature did not intend to provide for multiple convictions of a defendant who

creates and delivers a false document. According to defendant, "[h]ad the legislature criminalized

only the creation of the fraudulent document, one who *** delivered it *** may evade punishment"

and vice versa. Thus, defendant contends, sections 17--3(a)(1) and 17--3(a)(2) "essentially ensure[]

that a defendant is properly charged based on the stage of the process the defendant occupies." We

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agree. The forgery statute criminalizes both the creation and the delivery of a fraudulent document,

so that a defendant involved in either step may be prosecuted. However, defendant here was involved

in both steps, and he accomplished each step by a separate act. We agree with Horrell that these

separate acts can support separate convictions, and we reject defendant's argument to the contrary.

We agree with defendant that his conviction of deceptive practices should be vacated under

the one-act, one-crime rule. Therefore, we do not reach his argument that we should reverse his

deceptive practices conviction because the governing statute is unconstitutional. Based on the above

discussion, we reverse and remand the cause in case No. 2--07--0396, with instructions that

defendant's conviction of deceptive practices be vacated. Because defendant was convicted of two

counts of forgery, but sentenced for one count of forgery and one count of theft, we also instruct that

the discrepancy be reconciled on remand and that defendant be resentenced accordingly.

In case No. 2--07--1062, defendant argues that the trial court erred in dismissing his

postconviction petition at the first stage of proceedings under the Act.1 The Act provides a remedy

for defendants who have suffered substantial violations of their constitutional rights. People v.

Edwards, 197 Ill. 2d 239, 243-44 (2001). Under the Act, a postconviction proceeding not involving

1
Defendant's petition stated that it was brought pursuant to both the Act and section 2--1401
of the Code of Civil Procedure (735 ILCS 5/2--1401 (West 2006)). However, the trial court appears

to have treated the filing as a postconviction petition, and the parties raise no issue on appeal

regarding section 2--1401. Defendant also filed a separate section 2--1401 petition, apparently on

the same day as the postconviction petition we now consider on appeal. Comments from the parties

on the record indicate that the trial court has held consideration of that petition in abeyance pending

the outcome of this appeal.

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the death penalty contains three stages. Edwards, 197 Ill. 2d at 244. At the first stage, the trial court

must independently review the postconviction petition within 90 days of its filing and determine

whether the petition is frivolous or patently without merit. Edwards, 197 Ill. 2d at 244. If the court

determines that the petition is frivolous or patently without merit, the court must dismiss the petition

in a written order. Edwards, 197 Ill. 2d at 244. A petition is considered frivolous or patently without

merit only if the allegations in the petition, taken as true and liberally construed, fail to present the

gist of a constitutional claim. Edwards, 197 Ill. 2d at 244.

Defendant asserts that the allegations in his postconviction petition, taken as true, stated the

gist of at least one constitutional claim. (Defendant highlights his allegations that he received

improper admonishments during sentencing and that his counsel was ineffective for failing to file a

motion to reconsider his sentences, failing to file a notice of appeal, and failing to challenge his

conviction of deceptive practices.) He observes that the trial court did not contest the merit of his

claims, but instead dismissed his petition as moot because we had allowed defendant to file an appeal

in which all of defendant's claims could be raised. Defendant argues that the trial court could not rely

on mootness as a basis for the first-stage dismissal of his petition.

We find our supreme court's decision in People v. Blair, 215 Ill. 2d 427 (2005), to be

instructive here. There, our supreme court considered whether a trial court could dismiss a

postconviction petition at the first stage based on res judicata or forfeiture. The supreme court first

held that, when the legislature used the phrase "frivolous or *** patently without merit" to describe

the type of petition that could be dismissed at the first stage of postconviction proceedings, it meant

to include petitions barred by res judicata or forfeiture, because both cause an otherwise meritorious

claim to have "no basis in law." Blair, 215 Ill. 2d at 445. The court buttressed its holding by

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referencing section 122--2.1(c) of the Act (725 ILCS 5/122--2.1(c) (West 2002)), which provided

that, when evaluating a petition at the first stage of postconviction proceedings, a trial court " 'may

examine the court file of the proceeding in which the petitioner was convicted, any action taken by

an appellate court in such proceeding and any transcripts of such proceeding.' " Blair, 215 Ill. 2d at

446, quoting 725 ILCS 5/122--2.1(c) (West 2002). In the supreme court's view, section 122--2.1(c)

did not "limit a court's review of the record and appellate court ruling to determine if only the

petition's factual allegations are rebutted." Blair, 215 Ill. 2d at 446. "Rather, on the basis of facts and

legal rulings that are ascertainable from the court file, appellate court action, and any transcripts, a

court may also determine if legal claims have been decided or could have been raised, thus rebutting

the claims contained in the petition." Blair, 215 Ill. 2d at 446.

Although Blair considered res judicata and forfeiture, its reasoning provides strong guidance

on the closely analogous question of whether a trial court may rely on mootness to dismiss a

postconviction petition at the first stage of the proceedings. Indeed, res judicata and mootness

consider very closely related questions: res judicata bars claims "that were *** raised and decided on

direct appeal" prior to the defendant's filing his petition (Blair, 215 Ill. 2d at 443), while, at least in

the context of this case, mootness bars claims that are raised on direct appeal after the defendant's

filing his petition. Both issues can be settled by " 'examin[ing] the court file of the proceeding in

which the petitioner was convicted, any action taken by an appellate court in such proceeding and any

transcripts of such proceeding[s].' " Blair, 215 Ill. 2d at 446, quoting 725 ILCS 5/122--2.1(c) (West

2002). Further, both doctrines will render frivolous an otherwise meritorious claim. In short, the

mootness doctrine shares with the doctrine of res judicata all of the features that led our supreme

court to hold that a trial court could consider res judicata at the first stage of postconviction

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proceedings. Accordingly, based on Blair, we conclude that the trial court did not err in relying on

mootness to dismiss defendant's postconviction petition.2

For the foregoing reasons, in case No. 2--07--0396, we affirm defendant's forgery convictions

but remand the cause with instructions that defendant's conviction of deceptive practices be vacated.

Because defendant's convictions of two counts of forgery do not match his sentences based on one

count of forgery and one count of theft, we also instruct that, on remand, the discrepancy between

his convictions and sentences be reconciled and defendant be resentenced accordingly. In case No.

2--07--1062, we affirm the trial court's first-stage dismissal of defendant's postconviction petition.

No. 2--07--0396, Affirmed in part and vacated in part; cause remanded with directions.

No. 2--07--1062, Affirmed.

ZENOFF, P.J., and BOWMAN, J., concur.

2
We note that the practical significance to defendant of our holding is negligible, because the
issues he identifies as meritorious either have been addressed in case No. 2--07--0396 or, as to his

allegations regarding the sentencing hearing, may be addressed and remedied on remand.

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