dissenting:
This is not incompetence of counsel per se!
If so, this court has gone 180 degrees.
In People v. Tempel (1971), 131 Ill. App. 2d 955, 268 N.E.2d 875, the defendant’s attorney first admitted the probation violation and then declined to submit evidence of mitigation. We held in that case that the defendant was not denied effective assistance of counsel and further stated, “We cannot as a matter of supposition determine that the defendant might have had a defense, might not have violated his probation, might have had matters that could have been presented in mitigation, and that might have warranted a lesser sentence even if the violation was shown by evidence.” 131 Ill. App. 2d 955, 960, 268 N.E.2d 875, 878.
The majority here would now “suppose” that, in the absence of defendant’s testimony, the State was incapable of proving a matter as elementary as the income and expenses of a man on probation.
The majority’s attempted distinction of Tempel is a mere gossamer web. The stipulation in that case had precisely the same effect as the defendant’s testimony here; it provided the basis for the revocation of probation and without it the record would not support the judgment. While the majority makes much of the fact that it cannot perceive a tactical advantage in defense counsel’s conduct here, it is silent as to the tactical advantage obtained by the stipulation in Tempel. If Yantis’ counsel had made an “evidentiary stipulation” as to his income and expenses, I wonder whether the majority would have considered that a “calculated decision” and effective assistance of counsel.
The latest pronouncement of the United States Supreme Court is that the inquiry on a claim of ineffectiveness of counsel is whether counsel’s assistance was reasonable under all of the circumstances when viewed as of the time of counsel’s conduct. (Strickland v. Washington (1984), 466 U.S. _, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) In the present case, defense counsel allowed defendant to testify about his income and expenses. At the time, this testimony must have appeared rather harmless. Defense counsel might have allowed it as a convenience to the court in the hope of lenient treatment, since the State certainly could have established defendant’s income and expenses through more circuitous and time consuming evidence. But hindsight always has 20/20 vision.
Upon reviewing a claim of ineffectiveness of counsel, the court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ***.” Strickland v. Washington (1984), 466 U.S. _, _, 80 L. Ed. 2d 674, 694-95, 104 S. Ct. 2052, 2065-66.) Under the circumstances of this case, I am not persuaded that defendant has overcome this presumption when defense counsel’s conduct is viewed as of the time he allowed defendant to testify.
Even if the conduct was professionally unreasonable, the defendant must affirmatively prove prejudice. (Strickland v. Washington (1984), 466 U.S. _, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984), 466 U.S. _,_, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.) The majority, by erasing defendant’s testimony from the record and looking at what is left, concludes that the result would have been different if defendant had not testified. If we were dealing only with a question of whether the evidence supported the judgment, I would agree that our review should be confined to the record and that we should not concern ourselves with what might have been. However, we are dealing with questions of attorney incompetence, of assistance reasonable under all of the circumstances at the time of the assistance, and of the reasonable probability of a different result. For this reason, I believe it is appropriate to consider the likelihood of defendant prevailing if he had not testified.
In People v. Greer (1980), 79 Ill. 2d 103, 121, 402 N.E.2d 203, 212, the supreme court said, “*** we do not believe that the Constitution requires a new trial for every defendant whose counsel errs at trial, particularly in the absence of a demonstration that the outcome of a new trial would probably be different.” (Emphasis added.) In our case, defendant has not demonstrated that the outcome of a new trial would be different. The evidence introduced through defendant’s testimony was not inadmissible and will not be upon retrial. Again, all that defendant testified to was his income and expenses. I find it incredible to assume that the State will not be able to prove this, without defendant’s testimony, on remand.
The rule established by the majority seems to be that it is incompetence per se for defense counsel to allow a defendant to testify where that testimony provides the only evidence of an element of the offense-regardless of whether the State could have proved the matter without defendant’s testimony. I cannot buy it.
The Supreme Court warned in Strickland: “Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.” Strickland v. Washington (1984), 466 U.S. _, _, 80 L. Ed. 2d 674, 695, 104 S. Ct. 2052, 2066.
There will certainly be a great dampening of the ardor in a district where an attorney may be found incompetent for merely allowing his client to testify of his income at a probation revocation hearing.
I must dissent.