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This case arrives for review after a trial that lacked many of the features normallyassociated with trials conducted under our adversary system of justice. We confront a casewhere defense counsel promoted, as the process to judgment, a jury waiver and the use of awritten stipulation prepared by the prosecutor. Counsel chose to adjudicate the question ofher client's guilt or innocence by way of a stipulated bench trial, conduct that raises theultimate question for our review. Can a defense lawyer forego an adversarial test of theState's case and ease the path to conviction on a plea of not guilty, in the hope that an absenceof a true challenge to the State's case might curry the trial judge's favor and, thereby, resultin the imposition of lesser punishment?

Whether counsel can utilize stipulated bench trials in order to preserve adverse rulingsfor appellate review or whether a lack of a contest in lieu of a guilty plea can be utilized asa means to procure concessions from the State are two questions not at issue. Here, there wasno adverse ruling to appeal, and the State had not agreed to recommend lighter punishmentin return for a surrender to its evidence.

Maurice Dodson appeals his armed robbery conviction. The circumstances set forthin the written stipulation, and agreed upon as a means to a decision, make it fairly clear thathe committed the armed robbery that underlies this case. The following facts are set forth in the State-drafted evidentiary stipulation.

On July 22, 1999, in broad daylight, a man who matched Dodson's race and frame,wearing sunglasses and a purple cap, entered an Effingham, Illinois, liquor store calledSporty's Beverage Connection and robbed the clerk at gunpoint. A large amount of cash wastaken. An eyewitness saw the same man, gun in hand, run hastily into a room located on thesecond floor of a Best Inns hotel, a short distance from the crime scene.

The Effingham police arrived at the hotel just moments after the armed robberyoccurred. They learned from the hotel clerk that a man who fit the robber's description wasstaying in room 234. The police called the room and Dodson answered. The police orderedDodson to exit the room with his hands up. When he complied, it was immediately apparentthat the officers had caught him with his pants down. Dodson stood naked, save his underwear.

In the search that immediately ensued, police found torn receipts and checks fromSporty's, floating in the toilet bowl. They found a pellet handgun shoved under the airconditioner. Sunglasses were found behind the television set, and a purple cap was foundhidden behind a telephone book. The police found most everything related to the crime,except the large amount of cash reportedly taken in the robbery. When Dodson was laterbooked into jail, the police found $608 hidden in his underwear.

According to the facts set forth in the stipulation, the prosecution seemed to be well-armed with evidence to support Dodson's guilt. The State appeared poised for a trial thatwould result in an easy conviction, no matter how hard a criminal defense lawyer wouldstrive to defeat that goal.⁽¹⁾

Dodson could not afford to hire a criminal defense lawyer. Since he was entitled tohave a trained and licensed professional to champion his defense, the trial judge appointedthe public defender to represent him.

On October 13, 1999, Dodson's case was called for trial. He appeared with counsel. She advised him to waive a jury and proceed to a trial before the judge. In addition to thisadvice, she promoted a waiver of the right to confront the State's witnesses and the right topresent evidence in his own behalf. Counsel assisted Dodson in this endeavor by signing awritten stipulation prepared by the prosecutor.

The stipulation set forth the State's version of what the evidence would establish ifwitnesses were actually called to testify and exhibits were actually admitted. Naturally, itpresented the State's case in a light most favorable to the State. Counsel conceded the State'sability to present it in that fashion. She agreed to a recital of unchallenged proofs, incapableof being viewed with incredulity. There was nothing in the stipulation that offered a rationaltrier of fact reason to discredit any of the State's evidence.

The stipulation's content compelled the inescapable conclusion that Dodson hadcommitted the armed robbery with which he had been charged. Submitting the question ofguilt or innocence to a judge, based upon its content, made the trial's outcome a virtualcertainty.

The judge read the stipulation, he heard comments from the prosecutor and the publicdefender, and Dodson's trial was over. The judge made a finding instantly. To no one'ssurprise, Dodson was found guilty.

During the abbreviated trial proceedings, the judge asked Dodson's lawyer to commentupon the evidence. Rather than speak to the issue of guilt or innocence, which she must haveconsidered to be a foregone conclusion based upon the stipulation that she had signed,counsel confined her comments to matters that diminished the severity of the crime. Ratherthan challenge the existence of her client's guilt, counsel made a brief effort to mitigate it. She advised the judge that the weapon seized by the police was not a firearm, but a pelletgun. She further explained that the pellet gun was not loaded and that the armed robberyvictim was not hurt.

Her client now serves a 20-year prison term for armed robbery, the punishmentimposed as a result of the guilty finding.

The record discloses an absence of any pretrial motions in an effort to exclude or limitthe State's evidence. The judge was never called upon to rule on any evidentiary mattersprior to the trial. The record further reveals that the State proceeded without a concessionin return for the surrender of any real challenge to its case. There was nothing promised inexchange for the ease with which the stipulated bench trial allowed the State to achieve itsprosecutorial goal. Since the guilty finding was the only adverse ruling made in this case,counsel was limited in what she could raise in a posttrial motion; however, no posttrialmotion was filed. Thus, nothing was preserved for our review-nothing, that is, but thequality of counsel's performance in championing the defense.

Dodson's new lawyer argues that the promotion of a stipulated bench trial failed toadvance any interest other than the State's interest in obtaining an easy conviction,unencumbered by any commitment offered in return for Dodson's surrender to, andacceptance of, trial's inevitable outcome.

The sole issue on appeal is whether counsel's conduct lacked the advocacy necessaryto fulfill the adversarial role contemplated by the United States Constitution's promise ofprofessional legal assistance. In effect, we are asked to overturn Dodson's convictionbecause the attorney appointed to provide legal assistance performed so poorly that theassistance received was worse than no help at all.

We usually afford considerable deference to an attorney's performance on behalf ofan accused. In recognition of the fact that attorney skills and strategies will differ widely,we "indulge a strong presumption that counsel's conduct falls within [a] wide range ofreasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 689, 80 L. Ed.2d 674, 694, 104 S. Ct. 2052, 2065 (1984). When counsel's performance clearly falls belowan objective standard of reasonableness, substandard lawyering will not constitute groundsfor relief unless the person who suffered it can show that "there is a reasonable probabilitythat, but for counsel's unprofessional errors, the result of the proceeding would have beendifferent." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; see alsoPeople v. Lefler, 294 Ill. App. 3d 305, 311, 689 N.E.2d 1209, 1214 (1998).

This case does not present a common claim for relief from poor lawyering. Here, weare presented a circumstance that calls for a different standard of review. At the same timethat the Supreme Court decided Strickland v. Washington and set forth its standard for thereview of sixth amendment claims, it heard a companion case. In that case, the SupremeCourt cautioned that the sixth amendment requires, at a bare minimum, that defense counselact as a true advocate for the accused. Where "counsel entirely fails to subject theprosecution's case to meaningful adversarial testing, then there has been a denial of SixthAmendment rights that makes the adversary process itself presumptively unreliable." UnitedStates v. Cronic, 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047 (1984). The Court explained:

"[T]he adversarial process protected by the Sixth Amendment requires that theaccused have 'counsel acting in the role of an advocate.' [Citation.] The right to theeffective assistance of counsel is thus the right of the accused to require theprosecution's case to survive the crucible of meaningful adversarial testing. When atrue adversarial criminal trial has been conducted-even if defense counsel may havemade demonstrable errors-the kind of testing envisioned by the Sixth Amendment hasoccurred. But if the process loses its character as a confrontation betweenadversaries, the constitutional guarantee is violated." Cronic, 466 U.S. at 656, 80 L.Ed. 2d at 666, 104 S. Ct. at 2045-46.

This is not a case where counsel made a series of demonstrable mistakes during thecourse of a truly adversarial criminal trial. Here, we must deal with a trial that lacked anymeaningful adversarial test of the prosecution's case. The decision to promote a bench trialand the decision to sign the State-drafted stipulation virtually ensured a conviction and sparedthe prosecution those hardships that usually accompany the existence of a trained and skilledadversary trying to defeat its objectives. The stipulated bench trial provided a process tojudgment that lost its character as a confrontation between adversaries. The "crucible ofmeaningful adversarial testing" (Cronic, 466 U.S. at 656, 80 L. Ed. 2d at 666, 104 S. Ct. at2045) gave way to a proceeding that assumed the posture of capitulation. This trial was thefunctional equivalent of a guilty plea without the procedural due process safeguards requiredby Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969), and bySupreme Court Rule 402 (177 Ill. 2d R. 402).⁽²⁾

The State urges us to hold that defense counsel performed in a manner consistent withthe constitutional guarantee to the effective assistance of counsel. Its arguments diverge overwhat defense counsel was trying to do. Initially, the State maintains that defense counsel didnot concede the defendant's guilt by merely stipulating to the existence of the State'sevidence. The State reasons that the trial judge still had to find that the State's evidenceestablished guilt beyond a reasonable doubt. The State argues that it follows that counsel didnot "stipulate away" her client's guilt.

While it is true that counsel did not expressly concede her client's guilt by stipulatingto the existence of the State's evidence, it is also true that a guilty finding was the predictable,and inevitable, outcome of that decision. The State's defense of counsel's conduct implicitlyassumes that counsel employed a stipulated bench trial with the hope of winning an acquittal. This seems untenable. The written stipulation left no room for an acquittal, provided that arational and honest judge was relied upon to decide whether its content established guilt. The State's first argument obscures the real question. Since this proceeding took placeupon a plea of not guilty, we are in search of the advocacy behind counsel's decision toforego an adversarial test of the State's case. We will assume, for the sake of the State'sargument, that counsel was genuinely trying to win an acquittal by her pursuit of the methodemployed. As overwhelming a case as the State-drafted stipulation conveyed, we willapproach counsel's conduct as though she believed that the stipulation's content harbored adoubt that could result in an acquittal.

If counsel thought that she could win an acquittal without any real effort, she waswrong. Her client was convicted and sent to prison for 20 years. This occurred after shedeployed a process to judgment that dispensed with an opening statement, the cross-examination of the State's witnesses, the presentation of defense witnesses, and a closingargument. In seeking a summary acquittal, in lieu of one obtained after some work, shetendered the State's evidence in a light most favorable to the State and failed to direct thejudge's attention to the reasonable doubt that existed within the facts conveyed in thestipulation. She did not bother to question her client's guilt when asked to do so. Sound trialstrategy should be made of sterner stuff. People v. Moore, 279 Ill. App. 3d 152, 159, 663N.E.2d 490, 496 (1996).

We are mindful of the fact that the State might urge a review of these professionalerrors under the Strickland v. Washington standard. However, we are unwilling to equatecounsel's effort to obtain a summary acquittal, if that was truly her intent, with the kind oftest that allows for the conclusion that the State's evidence survived the "crucible ofmeaningful adversarial testing." Cronic, 466 U.S. at 656, 80 L. Ed. 2d at 666, 104 S. Ct. at2045. Criminal defense lawyers who submit their clients' fate to a judge based upon anevidentiary stipulation drafted by a prosecutor, who is intent upon obtaining a conviction,need to have a better reason for doing so than the hope of procuring an acquittal.

The State's backup position shifts ground entirely and readily assumes that defensecounsel conceded her client's guilt. This argument is more in tune with what the recordreflects. Counsel eased the path to conviction and, in the process, seemed intent oncircumstances that mitigated guilt. The State argues that concession was sound trial strategy. It maintains that conceding the defendant's guilt was a reasoned and a meaningful effort toprocure leniency from the judge. Our dissenting colleague agrees with this position. He isimpressed with how capitulation upon a plea of not guilty, designed to cull a judge'sappreciation and favor, seemed to succeed in helping this defendant. In support of theconclusion that counsel was effective, he points out that after finding the defendant guilty,the judge refrained from imposing the maximum punishment available and only imposed asentence that condemned the defendant to imprisonment for the better portion of life'sexpectancy. Although defense counsel did not mention her client's capitulation at sentencingand never placed it in issue as a mitigating factor (which of course it was not), and despitethe absence of any statement from the sentencing judge that it was a factor that he consideredin arriving at a sentence, we are told that trial counsel's strategy of surrender worked inspectacular fashion.

This view underscores the problem with these proceedings. Initially, we note that thecircumstances that might have mitigated punishment existed regardless of how counseldefended against a finding of guilt. Dodson's guilt did not need to be conceded in order topresent, prior to sentencing, the two existing mitigating circumstances. More important, theargument ignores the fact that counsel's client maintained a plea of not guilty. "[T]heconstitutional right of a criminal defendant to plead 'not guilty,' *** entails the obligation ofhis attorney to structure the trial of the case around his client's plea. *** In those rarecases where counsel advises his client that the latter's guilt should be admitted, the client'sknowing consent to such trial strategy must appear outside the presence of the jury on thetrial record in the manner consistent with Boykin." (Emphasis added.) People v. Hattery,109 Ill. 2d 449, 463, 488 N.E.2d 513, 518 (1985) (quoting Wiley v. Sowders, 647 F.2d 642,650 (6th Cir. 1981)). In Illinois, a guilty plea must be supported by a record that satisfiesSupreme Court Rule 402 (177 Ill. 2d R. 402).

Here, Dodson was asked whether he wished to waive a jury and proceed in accordancewith his attorney's wishes. He was never admonished about the rights that he was giving up,something mandated by Rule 402 and the United States Constitution in cases where a guiltyplea is tendered. Nothing in the record demonstrates that he knowingly and intelligentlywaived the right to a trial by jury, the right to confront witnesses, or the right to subpoenawitnesses on his own behalf, mindful of the potential penalties that accompanied thesurrender of those rights. He was only asked whether he wished to waive a jury trial andproceed in the manner recommended by his attorney.

Dodson proceeded to a trial before a judge only, upon an evidentiary stipulationdrafted by his prosecutor. That prosecutor conceded nothing in return for the easy andcertain result that such a trial would produce. Dodson proceeded to a certain determinationof his guilt without the benefits that accompany a plea of guilty. Without a guilty plea, hewas not entitled to the consideration that flows from the affirmative acceptance ofresponsibility and a showing of contrition over what he had done. Both are legitimate factorsthat accompany a plea of guilty and potentially mitigate punishment.

We are at a loss to find the advocacy that accompanied the chosen process to a guiltyfinding in this case. Dodson's lawyer shirked her obligation to structure the trial of Dodson'scase around his plea of not guilty. There simply was not any reason, consistent withadvocacy, to proceed without a contest.

The State, joined by our dissenter, would have us find that counsel, faced with a clientwho insists on maintaining a plea of not guilty, can legitimately concede that client's guiltwithout some reciprocal sacrifice from the State or some other strategy apart from the hopeof procuring leniency. See Hattery, 109 Ill. 2d at 464, 488 N.E.2d at 518. This approachassumes that defense counsel's concession of guilt, as opposed to a defendant's admission ofguilt, accrues some benefit that allows it to be called a strategy rather than an outrightcapitulation to the State's aims. The State surrendered nothing in exchange for counsel'sconcession of guilt. It reserved its right to recommend the maximum 30-year prison sentencethe law allowed, and that is what it did. Dodson did not waive any of the structuralprotections or attorney obligations that accompany a not-guilty plea. His course of allowingthe State to prove guilt without a legitimate contest won no points for the acceptance ofresponsibility for his conduct or for an act indicative of sincere contrition over hiscriminality. There was no reason to expect favor from the sentencing judge. He had noreason to find and, in fact, did not find that the defendant deserved less punishment becausehis lawyer chose not to fashion a defense around his not-guilty plea or because he agreed towaive a jury trial and an adversarial test of the State's proofs.

The dissent's concern that our reasoning forecloses the future use of a not-guilty pleacoupled with a stipulated bench trial is misplaced. A defense counsel whose client refusesto admit guilt but whose client still wants to procure some concession from the State in returnfor surrender to a certain finding of guilt may still employ the stipulated bench trial toachieve what, in essence, is the equivalent of a negotiated guilty plea. There is noticeablestrategy intended to mitigate punishment in such a course. The preservation of pretrialrulings for review, given the waiver that would occur upon a guilty plea, could also justifysuch a procedure.

Moreover, our reasoning will not foreclose the future use of an open plea of guilty asa legitimate defense, particularly where an adverse trial outcome is predictable. Contritionis the first step on the path to rehabilitation, and the offender who is willing to openly admithis guilt and accept responsibility for his misconduct has engaged in an act that the lawrecognizes as a means to the mitigation of punishment.

Counsel simply does not fulfill the constitutionally contemplated adversarial role byfacilitating a client's conviction on a plea of not guilty. There may be sound reasons for astipulated bench trial in lieu of a guilty plea, but a "hope of leniency," the reason posturedby the State, is not enough to validate giving up and giving in. Capitulation, on a song anda prayer that making it easy for the State will somehow accrue to a client's benefit, is notstrategy. It is merely a rationalization for failing to take on a hard case and perform in amanner in which criminal defense attorneys are expected to perform. Since there wasabsolutely no reason to give up without a contest, absent some concession from the State inreturn, counsel abdicated her role as an advocate. Accordingly, Dodson did not receive thekind of professional assistance that the sixth amendment right to counsel contemplates. Absent a determination of guilt through a meaningful adversarial process, a convictioncannot stand. We reverse the armed robbery conviction and remand for a new trial.

Reversed; cause remanded.

GOLDENHERSH, J., concurs.

JUSTICE WELCH, dissenting:

Sometimes you have a case where "you don't have a glove that won't fit." That is thecase that defense counsel had here. Defense counsel moved for discovery, requested theproduction 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 wouldprobably 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 defensecounsel do? At that point, mitigate the sentence.

Here we have a defendant who by his own admission is a crack dealer with four priorrobbery convictions, one prior theft conviction, and two prior burglary convictions. He hasbeen incarcerated much of his adult life and, as a result, has considerable knowledge of thecriminal justice system. He has now graduated to armed robbery, a Class X felony. Notmuch to work with.

What is counsel to do? Counsel's strategy would be to show that the weapon wasmerely a pellet gun, that no one was hurt, and that the defendant cooperated when arrestedand even gave his written consent to search his room. All this information would come outbefore the trial court in the form of a stipulation. The results were spectacular: defendantreceived 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 astipulated bench trial as a defense option. This I cannot condone. The stipulation marriesthe State to the facts. It avoids the inherent waivers of a guilty plea. It works to ensure thatthe State does not get everything in the stipulation so that it founders when carrying its heavyburden 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 caseconstitutionally served her client.

I also believe that under the majority's reasoning the majority may foreclose the openguilty plea as a defense option: If counsel advises a client to plead guilty and works tomitigate the sentence, when a conviction is likely and the State refuses to bargain, thencounsel has not properly assumed an adversarial role and has denied his or her clienteffective assistance.

For these reasons, I respectfully dissent.

1. Our colleague in dissent, taken by the strength of the State's evidence, ruminates overthe quandary that counsel faced. He concludes that since certain defense efforts were likelyto prove unsuccessful, counsel's effort to mitigate the sentence was a sound and a logicalcourse.

There are, without question, certain cases where counsel's advocacy skills are put tobest use by convincing a reluctant client that it is in his best interest to forego a test of theState's case and to enter a guilty plea, thereby demonstrating the kind of acceptance ofresponsibility and contrition that enable counsel to seek leniency when an appropriatepunishment is determined. In those cases where championing a defense evolves into astrategy focused exclusively upon the mitigation of sentence, that strategy's soundness mustnecessarily depend upon whether lesser punishment is a potential by-product of the strategy. Here, counsel's client obviously insisted upon his absolute right to maintain a plea of notguilty, despite counsel's desire to procure favor for surrendering to the State's case withoutany true contest. Since Dodson stood upon his plea of not guilty, we are left to wonder whatkind of mitigation counsel sought through the concession of her client's guilt. Contrary tothe implication that underlies the dissent, counsel's concession of guilt, through the waiverof a jury and a stipulation to proofs, is not a step that palliates the defendant's guilt or in anyway offers reason to impose lesser punishment.

While it is true that some cases offer counsel little to work with, whatever counseldoes on behalf of a client must be objectively reasonable. An acquittal in the face ofoverwhelming evidence is a rare occurrence. However, it does happen. When it does, it isusually the result of unexpected and unpredictable trial events that stem from vigorousadversarial testing of the State's evidence. Our colleague's reference to the O.J. Simpson trialproves instructive. Before the "dream team" began to question the State's evidence, beforethat evidence met with adversarial testing, it was almost universally accepted that O.J.Simpson would be convicted. At that point, there had been no in-court exhibition of how aglove that once clothed a killer's hand could not be stretched to a point of clothing fit to graceSimpson's own manus.

Of course, at the trial's outset, the State possessed seemingly irrefutable blood-exchange DNA matches, coupled with a host of other reasons that made O.J. Simpson theclear and obvious suspect. The rhetorical questions posed by the dissent could have beenraised to support the concession of Simpson's guilt, had the "dream team" decided to give up,waive the jury, and allow Judge Ito to decide guilt or innocence based upon an evidentiarystipulation crafted by Chris Darden and Marcia Clark.

In many cases an adversarial test of the State's case will not result in events that canbe used to argue a reasonable doubt over a client's guilt. Nonetheless, an acquittal will neveroccur in the absence of a contest. Thus, if defense counsel is going to give up an adversarialtest of the State's case, counsel had better have a sound reason for doing so.

2. Although the dissent fears that this decision may foreclose the use of open guiltypleas as a legitimate defense strategy, the fully admonished open guilty plea remains a soundmethod to procure a more lenient punishment. This is not a case where the accused waivedall of his rights, confessed his sins, and engaged in an act of contrition. The dissent seemsto think that the defendant engaged in conduct that the law recognizes as mitigating. Whilethe proceedings constituted the functional equivalent of a guilty plea, the defendantmaintained a plea of not guilty and asked that a trier of fact weigh the evidence and decidehis fate. This is not conduct that the law recognizes with favor as an acceptance ofresponsibility or contrition, initial steps on the path to redemption and rehabilitation.