People v. Terry
2012 IL App (4th) 100205
Ill. App. Ct.2012Background
- Terry was convicted in 1987 of aggravated criminal sexual assault and unlawful use of weapons by a felon, and sentenced to natural life and 10 years respectively.
- He sought postconviction relief in 2010 under the Post-Conviction Hearing Act after prior direct and federal habeas challenges.
- The trial court summarily dismissed the petition as frivolous and patently without merit, finding some claims barred by res judicata/forfeiture and others not presented on direct appeal.
- OSAD moved to withdraw as counsel, and the court granted withdrawal after determining no meritorious issues remained.
- On review, the appellate court affirmed dismissal, concluding the petition was frivolous and barred by res judicata/forfeiture, and, even if not barred, the claims lacked merit.
- The court awarded the State a $50 appellate cost assessment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the first-stage dismissal was proper despite a non-notarized affidavit | Notarization is not fatal; petition could survive if not frivolous | Non-notarized affidavit renders petition defective and dismissible | Affidavit defect not fatal; dismissal proper on merits of res judicata/merit grounds |
| Whether the Sixth Amendment right-to-counsel-of-choice claim was barred by res judicata | Claim未 resolved on direct appeal/habeas; merits could be revisited | Issue already decided; barred by res judicata | Barred by res judicata; not revisited on postconviction review |
| Whether the State unlawfully amended the grand jury indictment without returning to the grand jury | Amendment broadened the charges unlawfully | Amendment and information properly pursued with probable cause | No unlawful amendment; charges properly maintained with information and probable-cause hearing |
| Whether the indictment sufficiently charged aggravated criminal sexual assault | Indictment inadequate to prove essential elements | Indictment and information contained all elements | Indictment adequately charged the offense; information corroborated elements |
| Whether the postconviction claims were forfeited for not presenting on direct appeal | Claims could be pursued in postconviction relief | Forfeited since not raised on direct appeal | Forfeiture/applicable doctrine confirmed; claims barred |
Key Cases Cited
- People v. Edwards, 197 Ill. 2d 239 (2001) (postconviction remedial purpose; addressing frivolous claims)
- People v. Blair, 215 Ill. 2d 427 (2005) (res judicata/forfeiture in postconviction contexts)
- People v. Patterson, 192 Ill. 2d 93 (2000) (new evidence and limited excusal of forfeiture rules)
- People v. Rivera, 198 Ill. 2d 364 (2001) (partial dismissal prohibition in postconviction review)
- People v. Kincaid, 87 Ill. 2d 107 (1981) (amendment of indictments and procedural safeguards)
- People v. Coleman, 183 Ill. 2d 366 (1998) (new evidence and postconviction considerations)