People v. Cole
977 N.E.2d 1189
Ill. App. Ct.2012Background
- defendant Brandon Cole was convicted in July 2007 of two counts of attempted first-degree murder and sentenced to concurrent 20-year terms.
- on direct appeal, Cole claimed trial counsel was ineffective on three grounds; this court rejected those claims and affirmed, with remand for resentencing on a procedural issue
- in May 2010 Cole filed a pro se postconviction petition alleging Rule 431(b) venire questions and prosecutorial closing arguments alleged to violate due process
- circuit court summarily dismissed the petition as frivolous and without merit on July 19, 2010, finding the issues could have been raised on direct appeal and were rebutted by the trial record
- Cole appealed the summary dismissal, arguing appellate counsel was ineffective for not raising these issues on direct appeal
- the court held that the petition did not allege appellate-counsel ineffectiveness, implicit claims were not permitted, and the underlying trial issues did not implicate a constitutional right; the petition was properly dismissed
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether postconviction petition adequately alleged appellate-counsel ineffectiveness | Cole argues implicit appellate-counsel ineffectiveness | State contends petition lacked such allegations; issues not ruled on below | Precluded; no allegations against appellate counsel in petition; implicit claims not allowed |
| Whether Rule 431(b) violation alone constitutes a due-process violation | Cole argues Rule 431(b) were violated affecting due process | State: Rule 431(b) alone not a constitutional claim post-Thompson | No cognizable constitutional claim; not an arguable basis in law |
| Whether prosecutorial closing remarks amounted to reversible error and supported appellate-counsel ineffectiveness | Pro se claims of prosecutorial misconduct should have been raised on appeal | State: remarks were based on evidence and not reversible error; res judicata bars | No material factor in conviction; not basis for appellate-counsel ineffectiveness |
| Whether liberal construction of pro se petitions allows implicit claims of appellate-counsel ineffectiveness | Hodges liberal construction should permit implicit claims | Jones forecloses raising claims not ruled on below | Implicit claims not allowed; Jones controls |
| Whether petition was properly dismissed first-stage under the Act | Petition should survive if any arguable constitutional claim | Record rebutted; issues not constitutional; petition frivolous | Affirmed dismissal; no arguable constitutional claim |
Key Cases Cited
- People v. Hodges, 234 Ill. 2d 1 (Ill. 2009) (liberal construction of pro se petitions; threshold survival low)
- People v. Jones, 213 Ill. 2d 498 (Ill. 2004) (implicit claims not reviewable on appeal from summary dismissal)
- People v. Thompson, 238 Ill. 2d 598 (Ill. 2010) (Rule 431(b) violation alone not a constitutional claim post‑Thompson)
- People v. Coleman, 206 Ill. 2d 261 (Ill. 2002) (postconviction standard; frivolous/patently meritless)
- People v. Childress, 191 Ill. 2d 168 (Ill. 2000) (trial counsel ineffectiveness can be raised on postconviction if appellate counsel was unreasonable)
- People v. Blair, 215 Ill. 2d 427 (Ill. 2005) (res judicata bars reconsideration of issues decided on direct appeal)