dissenting:
Sometimes you have a case where “you don’t have a glove that won’t fit.” That is the case that defense counsel had here. Defense counsel moved for discovery, requested the production of police reports, and subpoenaed police notes. What did counsel find? Everything discovered pointed to defendant’s guilt.
Could counsel attack the search of defendant’s room? Yes, but the attack would probably prove unsuccessful because the signed consent to search appeared to be in order.
With the most certain possibility that defendant would be convicted, what can defense counsel do? At that point, mitigate the sentence.
Here we have a defendant who by his own admission is a crack dealer with four prior robbery convictions, one prior theft conviction, and two prior burglary convictions. He has been incarcerated much of his adult fife and, as a result, has considerable knowledge of the criminal justice system. He has now graduated to armed robbery, a Class X felony. Not much to work with.
What is counsel to do? Counsel’s strategy would be to show that the weapon was merely a pellet gun, that no one was hurt, and that the defendant cooperated when arrested and even gave his written consent to search his room. All this information would come out before the trial court in the form of a stipulation. The results were spectacular: defendant received a prison sentence of only 20 years when he could have received 30 years.
I believe that the majority’s reasoning forecloses a not-guilty plea coupled with a stipulated bench trial as a defense option. This I cannot condone. The stipulation marries the State to the facts. It avoids the inherent waivers of a guilty plea. It works to ensure that the State does not get everything in the stipulation so that it founders when carrying its heavy burden of proof. It preserves any vested but undiscovered rights the defendant possesses. I call this effective assistance of counsel. In sum, I believe that defense counsel in this case constitutionally served her client.
I also believe that under the majority’s reasoning the majority may foreclose the open guilty plea as a defense option: If counsel advises a client to plead guilty and works to mitigate the sentence, when a conviction is likely and the State refuses to bargain, then counsel has not properly assumed an adversarial role and has denied his or her client effective assistance.
For these reasons, I respectfully dissent.