concurring:
I concur in the court’s judgment. The majority reverses defendant’s conviction because defense counsel, rather than defendant, ultimately decided to tender a lesser included offense instruction. The majority holds that this decision ultimately belonged to defendant and not defense counsel. 162 Ill. 2d at 229-30.
I respectfully disagree. I believe that defendant did not receive effective assistance of counsel. I am of the opinion that the decision to tender a lesser included offense instruction is a matter of trial strategy and, therefore, properly rests with defense counsel after full consultation with defendant. I would reverse defendant’s conviction because defense counsel failed to consult fully with defendant concerning the issue.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test of Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. The defendant must prove that: (1) counsel’s representation fell below an objective standard of reasonableness; and (2) counsel’s substandard representation so prejudiced defendant as to deny him a fair trial. To prove actual prejudice, a defendant must show that a reasonable probability exists that, but for counsel’s unprofessional errors, the result would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. People v. Horton (1991), 143 Ill. 2d 11, 23.
As the Court in Strickland explained, a court does not use a checklist to evaluate attorney performance. No particular set of rules for counsel’s conduct can satisfactorily take into account the variety of circumstances that defense counsel encounters or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions. However, prevailing norms of practice, as reflected in, e.g., the American Bar Association standards, guide courts in determining what is reasonable conduct. Strickland, 466 U.S. at 688-89, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.
Citing the American Bar Association (ABA) Standards for Criminal Justice (see 1 ABA Standards for Criminal Justice § 4 — 5.2(a) (2d ed. Supp. 1986)), this court has recognized three decisions that are ultimately for the defendant to make after full consultation with counsel: what plea to enter, whether to waive a jury trial, and whether to testify in his or her own behalf. This court has recognized that a criminal defendant also has a fundamental right to decide whether to appeal. People v. Ramey (1992), 152 Ill. 2d 41, 54; accord Jones v. Barnes (1983), 463 U.S. 745, 751, 77 L. Ed. 2d 987, 993, 103 S. Ct. 3308, 3312.
In Ramey, this court further held that beyond those four decisions, however, trial counsel has the right to ultimately decide matters of trial strategy and tactics after consulting with defendant. (Ramey, 152 Ill. 2d at 54.) The comments to section 4 — 5.2 of the ABA Standards for Criminal Justice explain as follows:
"Many of the rights of an accused, including constitutional rights, are such that only trained experts can comprehend their full significance, and an explanation to any but the most sophisticated client would be futile. Numerous strategic and tactical decisions must be made in the course of a criminal trial, many of which are made in circumstances that do not allow extended, if any, consultation. *** Some decisions *** can be anticipated sufficiently so that counsel can ordinarily consult with the client concerning them. Because these decisions require the skill, training, and experience of the advocate, the power of decision on them must rest with the lawyer, but that does not mean that the lawyer should completely ignore the client in making them. The lawyer should seek to maintain a cooperative relationship at all stages while maintaining the ultimate choice and responsibility for the strategic and tactical decisions in the case.” 1 ABA Standards for Criminal Justice § 4 — 5.2, Commentary, at 4-68 (2d ed. Supp. 1986).
The decision to tender a lesser included offense instruction is such a matter of trial strategy. (People v. Palmer (1989), 188 Ill. App. 3d 414, 428.) It is a calculated risk on the part of defense counsel based on his or her assessment of the evidence and the perceived likelihood the jury will convict the defendant rather than acquit altogether. If the instruction is given to a jury that would have chosen to acquit on the greater offense, then counsel has effectively subjected defendant to the risk of conviction on an uncharged offense when the client might otherwise have avoided any conviction. Alternatively, if defense counsel fails to request the instruction defendant may be found guilty of the greater offense because the jury, in considering closely balanced evidence, believed it should find defendant guilty of a crime under the circumstances. It is these types of strategic calculations that a court will not second-guess. See People v. Barnard (1984), 104 Ill. 2d 218, 232; People v. Chapman (1981), 94 Ill. App. 3d 602, 608.
Because the decision to tender a lesser included offense instruction is uniquely one of trial strategy, courts have concluded that this tactical decision properly lies within the province of trial counsel. (People v. Green (1993), 256 Ill. App. 3d 496, 502; accord People v. Thompson (1976), 69 Mich. App. 465, 467, 245 N.W.2d 93, 94; People v. Griffith (1994), 158 Ill. 2d 476, 502-03 (Freeman, J., dissenting).) However, I am of the opinion that the decision to tender a lesser included offense instruction "can be anticipated sufficiently so that counsel can ordinarily consult with the client concerning [it].” 1 ABA Standards for Criminal Justice § 4 — 5.2, Commentary, at 4 — 68 (2d ed. Supp. 1986).
However, the above-quoted comments to the ABA Standards go on to analogize the decision to tender a lesser included offense instruction to the decision of what plea to enter. Thus, the comments recommend that a defendant should ultimately decide whether to tender a lesser included offense instruction. The majority relies on this recommendation. 162 Ill. 2d at 228.
I disagree with the ABA Standards on this specific issue. Rather, I agree with the Supreme Court of Georgia that the decision to tender a lesser included offense instruction does not rise to the same level as the decision of what plea to enter. Recently, that court has reasoned that the decision to tender a lesser included offense instruction "is often based on legal complexities only the most sophisticated client could comprehend ***.” Van Alstine v. State (1993), 263 Ga. 1, 3, 426 S.E.2d 360, 363.
The court in Van Alstine noted that it is critically important that defense counsel consult fully with the defendant on whether to tender a lesser included offense instruction. Also, a court must closely scrutinize the effect of a failure to so consult when the defendant asserts ineffective assistance of counsel. However, the court in Van Alstine concluded that the failure to follow this crucial practice does not constitute ineffective assistance of counsel as a matter of law. Van Alstine, 263 Ga. at 4, 426 S.E.2d at 363.
Applying these principles to the present case, I conclude that defendant did not receive effective assistance of counsel. In terms of the Strickland test, I am of the opinion that defendant has proved both deficient counsel and prejudice. I base my conclusion on defense counsel’s failure to consult fully with defendant on defense counsel’s decision to tender a lesser included offense instruction. Specifically, defense counsel failed to inform defendant that the statute of limitations period had run on the lesser included offense. (237 Ill. App. 3d at 822.) I disagree with the majority’s holding that this decision was ultimately defendant’s to make.
Also, I agree with the appellate court that because defendant was acquitted on the charged offense of theft by deception, he cannot be retried on that count due to considerations of double jeopardy. Further, defendant cannot be retried on the lesser included offense of deceptive practices due to the statute of limitations. (237 Ill. App. 3d at 828.) Thus, I agree that the judgment of the appellate court, dismissing this action, should be affirmed.
CHIEF JUSTICE BILANDIC joins in this concurrence.