*1 ILLINOIS, Plaintiff-Appellee, v. OF THE STATE THE PEOPLE OF ANDERSON, Moore, Defendant-Appellant. Martinez ROBERT a/k/a (6th Division) No. 1 — 95—0847
First District rehearing Opinion on denial March 1997. Modified filed
May
ZWICK,J., dissenting. Serritos, Appellate J. Michael Pelletier and Manuel S. both of State Office, Chicago, appellant. of Defender’s for (Renee Devine, Attorney, Goldfarb, A. Chicago Richard State’s of Celeste Stack, Clark, counsel), Stewart L. Attorneys, and Scott Assistant State’s of People. for the
PRESIDING JUSTICE GREIMAN opinion delivered court: Anderson, Moore, appeals Robert
Defendant Martinez a/k/a trial court’s dismissal of his relief se for previously pied frivolous and without merit. Defendant had guilty eight-year to count of home invasion received an one and another, be with sentence consecutively sentence to served from conviction. unrelated (1) appeal:
Two issues are raised on whether the statements made during proceeding prosecutor dismissal constitute revers- error; post- ible and whether defendant’s sufficiently relief of conviction established claim ineffective assis- plea. guilty tance of counsel for failure to withdraw defendant’s We affirm. 1993, charged by a six-count indict- defendant was
On June from incident of home invasion ment that included offense defendant, charges May 1993. The stated that occurred on Letcher, Leanya bat, entered the residence of armed with baseball her, against and struck her the imminent use of force threatened with a baseball bat. head 18, 1994, inva- pied guilty to home On November defendant hearing, represented charge. guilty sion At the defendant plea attorney the court by private Defendant’s stated to counsel. the continuation of conveyed [defendant] the result of "[w]e have a plea to enter of 402 conference” and defendant decided [Rule] him, charges against guilty. court The trial advised defendant (6 sentencing years), applicable range possible penal- to 30 other (such $10,000), right by jury, a trial and up ties as a fine his legal rights, right as the to remain silent and other attendant such After he against confront the witnesses him. defendant stated that rights, presented jury these his waiver understood guilty. plea continued in his agreed entering further that he was
Defendant freely voluntarily, one had or forced him to that no threatened plead guilty, eight years be recommended sentence would prison. charged The State then submitted the factual for the of- basis *3 stipulated fense charge. and defendant to the factual basis of the accepted plea and the guilty The trial court defendant’s of recom- eight-year mended sentence. The trial court advised defendant of his appeal rights as follows: Moore, you, right ap-
"I advise a you want to Mr. that have you peal perfect right the decision of this court. In order to that 30 days appeal. must file within a notice of That must be in writ- by ing signed you. and you indigent copy provided, will transcript
If are a free be attorney. an also your
Any point your plea of set out motion to vacate guilty be waivefd].” will deemed that he the
Defendant stated understood trial court’s instructions. 26, 1995, January post- On filed a for defendant peti- a of counsel. his appointment conviction relief and motion for tion, of averred he was denied effective assistance defendant that (1) guilty plea his his failed to withdraw counsel because counsel (2) a upon request suppress and failed file motion defendant’s and grounds involuntary it was defendant’s confession on the that guilty plea, Regarding his desire to withdraw his defendant coerced. guilty stated he "did inform he wanted to withdraw his that counsel plea and was informed counsel didn’t think it prudent.” Defen- alleged dant also that pleading about three after guilty, weeks he attorney stating had sent his a letter that he wanted to withdraw his guilty plea reply and he "did any not receive from counsel.” No af- fidavits or supporting petition. documents were attached to the 1, 1995, February
On the trial post- court denied defendant’s At petition. proceeding, the the trial conviction court recounted sentence, guilty plea acknowledged receipt and defendant, by allegations documents filed and the specific noted the The trial court observed neither motion to withdraw an appeal his nor had been filed and ruled any that defendant "has waived which have properly matters could brought by filing been way of vacate the motion to or in alternative further, appeal.” a notice of points The trial court stated that by affidavit, raised defendant in fact supported "are that it is affidavit,” his there are additional affidavits to his support following exchange contentions. The then occurred between the assis- Attorney tant State’s and the court: Judge, Attorney]: just BYRNE I [Assistant
"MR. State’s also recall case as well I don’t know what the defendant’s affi- specifically being represented by davit but I him states remember able, very competent counsel. Yes, was, by private attorneys. he several
THE.COURT: MR. Hickey. Mr. Wolffand Mr. BYRNE: only Hickey THE COURT: Mr. Mr. Not Wolffand Mr. Nem- zin, represented firm him. Well, affidavit, just
Let me see. the affidavit he was read him, foregoing by subscribing the same is true and correct. respectfully So most will be denied. be That will the order.” appeal,
On first asserts that statements made Attorney at postconviction proceeding the assistant State’s were therefore, and, improper dismissal order be should be reversed and the cause should remanded further (1) postc'onvietion proceedings. Defendant maintains remark "I know what the defendant’s affidavit prosecutor’s don’t sufficiency impermissible was an observation directed at states” claim; being "I remember him prosecutor’s remark *4 able, competent impermissible represented by very counsel” was an opinion meant as a candid contradiction defendant’s assertion of ineffective assistance of counsel. the made the assistant
The State contends that comments Attorney no the State’s were incidental and had effect on decision of
1027 challenged state- first that the The State maintains trial court. the states”) ("I indicates affidavit the defendant’s know what ment don’t argued let alone even seen had not prosecutor that the challenged state- in the second The State submits its merits. able, ("I competent by very being represented him ment remember *** merely was Hickey”), prosecutor and Mr. Mr. Wolff counsel. counsel, that trial identity of defendant’s reminding judge on the and not a comment a matter of record such information trial court’s argues that the The State further petition. merits of the upon the based that it dismissed statements demonstrate of its opinion review of the independent trial court’s merits. (the Act) a three- Hearing Act establishes The Post-Conviction postconviction relief. adjudication of a for step process for 1994). (West determine The court must first seq. et 725 ILCS 5/122 — 1 merit. 725 patently without is frivolous or is whether the 1994). 2.1(a)(2)(West to be frivo If the is found ILCS 5/122 — merit, may summarily dismiss the the court patently lous or without (West 1994). 2.1(a)(2) Second, peti if the ILCS petition. 725 5/122 — dismissed, counsel may appoint court summarily then the tion is not 1994). (West indigent 725 ILCS represent an defendant. 5/122 — 4 may and the State may postconviction petition Counsel amend (West 1994). ILCS then to dismiss the 725 move 5/122 — 5 hearing at the discretion evidentiary stage provides The third 1994). (West mat On review of 725 ILCS of the trial court. 5/122 — 6 will not Act, determinations the trial court’s ters decided under Whitehead, People v. manifestly erroneous. be disturbed unless (1996). Ill. 2d and, therefore, did summarily
The case was dismissed present stage, "the circuit stage. At the first beyond the first advance from any input without petition independently, court considers (1996). Where the Gaultney, 174 Ill. 2d either side.” stage, in the first trial court dismisses the record shows required "is where appeal reversal on when determin input from the State sought circuit or relied on court Ill. 2d at 419. Gaultney, ing petition is frivolous.” whether the indication, presume we must the record shows such Where 174 Ill. 2d at judge properly. Gaultney, the trial acted affirmed the dismissal Gaultney, supreme court without petition as frivolous though even a motion to dismiss Gaultney filed merit. The State supreme stage. The at the first filing premature improper such responsive filing early of motion "[t]he held that mere court *5 pleading by State, however, the per does not se contaminate the circuit court’s pursuant determination to section 122 — 2.1” because premature filing of such motion prevent "does not the circuit court from independently evaluating whether a postconviction peti tion is patently frivolous or without merit.” Gaultney, 174 Ill. 2d at (1991). citing People Mitchell, v. App. 218 Ill. 3d 401 supreme The rejected court argument defendant’s that the circuit court’s order demonstrated reliance on the State’s motion to dismiss. Gaultney, 174 Ill. at 2d 420. supreme
The
court in Gaultney expressly agreed with
ap
proach
prior appellate
of
decisions in determining whether or not the
judge’s
trial
independent evaluation was
stage
tainted at the first
postconviction
a
petition proceeding. Gaultney,
After the defendant Oury in filed a postconviction petition, se granted trial court poor defendant leave to sue person appointed public represent defender to her. The State filed a motion to strike the defendant’s asserting that it was lack ing form and substance. The record revealed that the trial "court expressed preference its to decide with the benefit argu of counsel’s ment whether the patently frivolous without merit. *** [Ajfter hearing arguments State and of appointed counsel, defense granted the court the State’s motion to strike and dismissed the patently as frivolous and without merit under 2.1(a) section of the Act.” Oury, App. 259 Ill. 3d at 666. 122 — Barker, In the trial court committed reversible error sum marily dismissing the postconviction defendant’s petition where it "invited premature legal argument attorneys from for both sides' summarily dismissing before petition” and asked "the parties positions to advocate their in anticipation of the court’s inde pendent preliminary Barker, petition’s determination of the merit.” App. 258 Ill. 3d at 326.
The in Rutkowski post- filed second amended petition pro conviction hearing, argued se. At the first the "State presented defendant had not prove affidavit to that a psychiatrist, trial, Rut properly licensed.” was not at defendant’s who testified court days later the trial Two kowski, 3d at 1067. App. 225 Ill. being frivolous petition as dismissed the defendant’s record reflects that "[t]he court held appellate merit. The and without days two arguments” from the State’s trial court that the considered Rutkowski, App. 3d at 225 Ill. rendering its decision. to its prior post- Merritte, of the defendant’s dismissal orally moved to the State was reversed where conviction posi of its arguments support presented dismiss the frivolous to be tion, found specifically and the trial court by Counsel reasons stated merit "based on the without by the Court.” on the further statement argument in his Merritte, and based the dis appellate court reversed App. 3d at 986. The 225 Ill. *6 length at missal, argued its motion to dismiss finding that "the State that the dismissal specifically "the court stated before the court” and based, the part, was at least in on of the Merritte, argument.” by the State in its oral presented reasons at 987. App. Novak, the dismissal of the In the State conceded that the State petition was error where postconviction defendant’s se peti the proceeded and the court to dismiss filed motion to dismiss Novak, App. 3d at 190-91. the State’s motion. 200 Ill. pursuant tion Brothers, in the During hearing petition on the defendant’s the whether defendant trial court asked the State to address the issue of during proceedings. these represented by was entitled to be counsel alleged argue that the response, After its the State was "allowed meritless petition in was constitutional violation raised defendant’s Brothers, App. 179 Ill. 3d at petition and the should be dismissed.” the mat response. The trial court continued 789. Defendant made represent defendant. public the defender’s office to appointed ter and tanta appointment that her was public After the defender stated frivolous, the petition was not finding mount to that the defendant’s Attorney has "for the reasons that the State’s trial court ruled indicated, substantive its face does not set forth petition on *** I granting postconviction relief ***. justify reasons to dismiss grant State’s motion to going go am ahead and Brothers, 179 Ill. relief.” petition postconviction [defendant’s] App. 3d at 790. cases, improper participation
Unlike the above which found case, court, did not present in the parties, or both of the the trial one argument entertain, any way, input or in request or invite or seek to Moreover, not state or even the trial court did party. from either imply ruling based, that its any way, on the State’s comments. Furthermore, motions, State made no either written or oral.
In Gaultney, the supreme court held that "reversal required where the record shows that sought circuit court or relied on input from the State determining when whether is frivo lous.” Gaultney, 174 Ill. case, 2d at present the transcript establishes that the trial court clearly had read and considered petition, defendant’s determined that waived, certain issues were and summarily decided to dismiss the independent any input by the expressly State. The State acknowledged that it did not know the contents of identity but recalled the defense counsel. The trial court restated the names of defense counsel and, fact, included one more name. While we believe that State’s attorneys’ characterization of the reputations "very able” "competent” should have unspoken, been left we find that those comments did not contaminate the trial independent court’s decision- making ability. To hold that the judge’s trial decision was less than independent based on the record here ability insults the of the trial distinguish court to uninvited, between incidental remarks of the State and the legal substantive matters raised in the More over, counsel’s competency, State, as acknowledged by the related to in-court conduct while the petition complained of counsel’s conduct outside the record and subsequent to the trial.
Next, defendant addresses the merits of his and- asserts that his sufficiently raised the claims (1) he received ineffective assistance of counsel because his counsel failed to act on his desire to withdraw thereby perfect failed to an appeal; guilty plea proceed- ings were urges defective. Defendant this court to overlook the any absence of affidavit attached to beyond to look *7 language and to infer an unstated claim for failure to perfect appeal an from the claim stated of failure to withdraw his guilty plea.
To sufficiency determine the of the claims by now advanced defendant, we are by instructed the Act regarding and case law waiver, the need to attach an supporting affidavit or documents to a postconviction petition, and the apply standard to to the stage dismissal postconviction proceedings. of Section provides "[a]ny 122 — 3 Act that claim of substantial denial of rights original constitutional raised or an (West 1994). petition amended is Relying waived.” 725 ILCS 5/122 — 3 statutory on provision, Supreme this the Illinois Court that an held argument postconviction petition not raised in a will not be
1031
Gaultney, 174 Ill. 2d at
and is
waived.
considered on review
deemed
(1995).
Guest,
381,
422-23;
405
People v.
166
2d
see also
Ill.
will
postconviction proceeding
a
be
The Act also dictates that
***
by affidavit.”
filing
petition
of "a
verified
commenced
725
1994).
(West
specifically
have
held
"[0]ur
ILCS
courts
5/122 — 1
affidavits,
other evidence in
support
the absence of
records or
require
an
postconviction petition
renders the
insufficient
(1993)
227,
Johnson,
hearing.”
Ill.
240
evidentiary
(and
People v.
154
2d
79,
therein); People
Seaberg,
App.
262 Ill.
3d
82
cases cited
v.
(1994) ("the
sup
allegations
postconviction petition
of a
must be
affidavits”).
ported by
accompanying
in the case
the record
or
To
of a
at the first
postconviction
withstand dismissal
stage,
only present
gist
"a
need
of a constitutional claim.”
affirmed);
v.
Gaultney,
(summary
People
prejudice is required where
perfect
counsel failed to
the defendant’s
appeal.
Moore,
People
331,
(1990);
Cole,
v.
133 Ill. 2d
339
287
(1997);
App.
Hernandez,
Ill.
149
"the mere perfect appeal counsel failed to an enough. not satisfy Defendant must prong still the first of Strick land, i.e., performance failing that counsel’s perfect ap to an peal was deficient. In performance, order to establish deficient de allege fendant must that he communicated to counsel a desire to [citations], appeal satisfactorily explain or at least why he did not Hernandez, request appeal an App. earlier.” 3d at 318. The postconviction petition instant defendant’s allege does not perfect appeal, counsel failed to an allege does not that he com municated to counsel a desire explanation why appeal, any and does not offer Instead, request appeal
he did not an earlier. defen alleged dant that he accept guilty plea "did not want to and attorney asked his to withdraw his prepare the case for trial.” All we have is defendant’s bare allega and unsubstantiated tion that he informed counsel that he wanted to withdraw his plea. first stated that he "did Defendant inform counsel he wanted to withdraw guilty plea his and was informed counsel didn’t think it prudent.” Defendant also claimed to have written counsel a let ter to inform him of his guilty plea desire to withdraw his but only inconsistent, received reply. allegations Not are these they documents, any supporting also lack alleged such as the letter writ ten defendant. (Cole,Hernandez, The cases on which defendant relies and Swan
son) distinguishable are postconviction petitions because the at issue allegation included the appeal the defendant wanted to and at Cole, tached affidavits. In the defendant attached two affidavits to his pro postconviction petition se and "stated in his that after counsel, being appeal.” misled he was not satisfied and wanted to added.) Cole, Hernandez, (Emphasis App. 287 Ill. 3d at 149. In the de fendant attached affidavits to his se relief, alleged duty perfect that counsel had a an appeal, and of explanation regarding fered an the reasons for not an requesting ap Hernandez, Swanson, peal Ill. App. earlier. 3d at 318. In defendant attached affidavits to his
alleged "that he was denied the effective assistance of counsel because Swanson, appointed appeal.” his counsel failed to file a notice of Cole, Hernandez, Swanson, Ill. App. 3d at 131. In contrast to any any supporting instant defendant did not attach affidavits or appeal post- an in his documents to his and did mention petition. conviction waived this issue for failure to
Under the Act defendant has addition, any defendant failed to attach include it supporting support required such a claim as affidavit or documents Moreover, standard, an under the Act. even under the most relaxed unstated claim should not and suffice to withstand cannot trig- present dismissal. To hold that the gers at issue in the case evidentiary hearing effectively any *9 would mean that can. Such principle defies the Act.
Second, guilty plea proceeding defendant asserts that the was sufficiently apprise defective because the trial court did not him of Act, the sentencing appellate rights. alternatives and his Under the this issue is waived because defendant made no mention of it in his Moreover, Supreme the Illinois Court has held that where a allege guilty defendant fails to in his that the plea proceeding way, was defective in some the issue is waived when Williams, appeal. People first raised on v. Ill. 468 (where he present allegation failed to postconviction peti his tion, advance, appeal, the defendant could not on the claim that the given by judge admonition him the accepting guilty trial before his (1972) (the plea inadequate); Barber, People was v. 2d 268 de fendant waived review of his guilty contention that his was knowingly voluntarily entered because he failed to raise it in (and therein). original petition) cases cited The failure attach to an affidavit supporting petition documents would not neces sarily be fatal to this issue because we have the record of the plea proceeding assuming ignore before us. Even that we the waiver rule, apply exception requirement, the affidavit and reach the merits, we find that the transcript guilty plea proceeding of the that all requisite given by reveals admonishments were the trial court. reasons, foregoing
For all the the trial court’s dismissal of defendant’s petition as frivolous or without manifestly merit was not erroneous.
Affirmed.
THEIS, J., concurs. ZWICK, dissenting:
JUSTICE disagree I majority’s with the the trial conclusion court considered independent any defendant’s and dismissed it input by the State. (1996),
The People Gaultney, decision 174 Ill. 2d that, unequivocally prior summarily dismissing mandates proa postconviction petition, obligated the trial court is to consider "the petition independently, any input without either side.” from added.) (Emphasis Reversible error is established if the circuit court sought upon or relied input prosecution determining from the whether the was frivolous. See v. Gaultney, 174 Ill. 2d (1996). 410, 418
In the judice, case sub the thrust of the was allegation that he deprived was of effective assistance of counsel. prosecutor The opposition stated to the court in to the able, represented by "very at trial competent counsel.” directly This statement contradicted defendant’s claim of ineffective majority assistance of The counsel. holds that because this comment "incidental,” was "uninvited” and it proceed- did not contaminate the ings. agree. I cannot Whether uninvited and incidental or deliberate calculated, prosecutor’s the effect of the statement is the same. It destroy independence judicial serves to evaluation. The duty court was any bound to examine the free input from either The prosecution expressly precluded any side. from participation stage at proceedings. Accordingly, this a com- prosecutor challenges ment very core of defendant’s *10 argument patently improper and cannot merely by be excused characterizing it as inadvertent incidental. Whether deliberate or unintended, the prosecutor’s dagger comment was a thrust heart of defendant’s claim. The fact that the court did not solicit the expressly comment or indicate justify its reliance thereon does not view, inappropriate my conduct. this comment was not an significance, incremental strategic by intrusion of little but a attack prosecution. court, hearing gratuitous upon The trial comments prosecutor, postconviction equivalent should have declared the aof very judge. mistrial and transferred the cause to a different At the most, a few expenditure this result would necessitate the additional me, judicial price pay protect hours of resources. To it is a small rights integrity process. the defendant’s constitutional and the reasons, For the above I would reverse and remand with direc- judge. tions that the be examined different