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People v. Redmond4/18/2005
permission to enter Budil's car. Also, the defense presented no evidence. Even if defendant's attorney had removed Mullally from the jury, another jury most likely would have found defendant guilty. Defendant cannot show that the result of the proceeding would have been different if his attorney excluded Mullally from the jury.
We also note that defendant's attorney's actions were not deficient. In order to prove ineffective assistance of counsel, defendant must overcome the presumption that the challenged conduct might be considered sound trial strategy under the circumstances. People v. Giles, 209 Ill. App. 3d 265, 269 (1991). Neither mistakes in strategy nor the fact that another attorney with the benefit of hindsight would have handled the case differently suggests the trial lawyer was incompetent. People v. Young, 341 Ill. App. 3d 379, 383 (2003). A decision that involves a matter of trial strategy typically will not sustain a claim of ineffective representation. People v. Simmons, 342 Ill. App. 3d 185, 191 (2003).
Defendant's attorney's decision against using a peremptory challenge on Mullally was a matter of trial strategy. Mullally indicated that he could be a fair juror. Mullally's failure to initially disclose a prior charge of driving while intoxicated did not necessarily render him unfair or unable to serve as a juror. Defendant's attorney considered Mullally's actions but opted, as his part of his strategy, not to strike him. We do not find such actions of trial strategy to be egregious enough to have denied defendant effective assistance of counsel.
Next, defendant claims that the trial court failed to inform of his option to seek Treatment Alternatives for Safe Communities (TASC) probation under the Alcoholism and Other Drug Abuse and Dependency Act (Act) instead of imprisonment. See 20 ILCS 301/40-5 (West 2002). Specifically, defendant contends that he was eligible for TASC probation and the court was obligated to present it as an alternative to a prison sentence. The State maintains that defendant was not eligible for TASC probation due to his prior felony convictions, which mandated a Class X sentence.
Section 40-5 of the Act outlines the election of treatment in TASC for eligible addicts, and reads:
"An addict or alcoholic who is charged with or convicted of a crime may elect treatment under the supervision of a licensed program designated by the Department, referred to in this Article as `designated program', unless:
(1) the crime is a crime of violence;
(2) the crime is a violation of Section 401(a), 401(b), 401(c) where the person electing treatment has been previously convicted of a non-probationable felony or the violation is non-probationable, 401(d) where the violation is non-probationable, 401.1, 402(a), 405 or 407 of the Illinois Controlled Substances Act, or Section 4(d), 4(e), 4(f), 4(g), 5(d), 5(e), 5(f), 5(g), 5.1, 7 or 9 of the Cannabis Control Act;
(3) the person has a record of 2 or more convictions of a crime of violence;
(4) other criminal proceedings alleging commission of a felony are pending against the person;
(5) the person is on probation or parole and the appropriate parole or probation authority does not consent to that election;
(6) the person elected and was admitted to a designated program on 2 prior occasions within any consecutive 2-year period;
(7) the person has been convicted of residential burglary and has a record of one or more felony convictions;
(8) the crime is a violation of Section 11-501 of the Illinois Vehicle Code or a similar provision of a local ordinance; or
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