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.” 241 Ill. App. 3d at 118. 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 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 [szc]. What I said before doesn’t add up the 50 per cent. That is exactly true, and therefore it is not preponderance.”
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. 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.