People v. DominguezPeople v. Dominguez
Robinson, 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836 (1966). In Garlick this court held that it was “inherently unconstitutional to place the burden of proof on the defendant in a hearing to determine his fitness to stand trial.” Garlick, 46 Ill. App. 3d at 223, citing People v. Bender, 20 Ill. 2d 45, 47 (1960). Although Garlick properly engages in a fundamental fairness analysis of rights that arise from the Constitution, it is wholly irrelevant to this case because it does not address the issues of void sentences and credit for probation against a subsequent prison sentence, which arise from statute, not the Constitution.
The majority condemns the “unfairness” of a result that allows a defendant who has violated his probation to potentially receive credit for some portion served while someone who has, in effect, “done evеrything right” may not. The majority, however, ignores the fact that defendant was neither mistreated nor dealt with unfairly, but was the fortuitous beneficiary of freedom to which he was not entitled. Simply put, a mistake occurred that resulted in eight additional months of freedom for defendant. The fact that he is not entitled to credit for the original void sentence does not implicate issues of fundamental fairness or due process. Defendant is not similarly situated to any defendant eligible for probation. Defendant is not entitled to be “treated better” than a defendant who receives and then violates his probation because defendant here is a Class X felon. Moreover, it violates principles of common sense and is a waste of judicial resources to remand a case to the circuit court to decide whether a Class X felon should receive credit when the well-established Illinois Supreme and Appellate Court authority holds that he may not.
I, therefore, dissent.
Jed H. Stone and John Curnyn, both of Stone & Associates, of Waukegan, for appellant.
Michael J. Waller, State‘s Attorney, of Waukegan (Martin P. Moltz and Barry W. Jacobs, both of State‘s Attоrneys Appellate Prosecutor‘s Office, of counsel), for the People.
JUSTICE CALLUM delivered the opinion of the court:
Following a jury trial, defendant, Ramon J. Dominguez, was convicted of first-degree murder (
I. FACTS
In Dominguez I, we rejected defendant‘s arguments that, inter alia, his trial attorneys were ineffective for (1) failing to recommend that defendant submit a jury instruction on the lesser included offense of involuntary manslaughter; and (2) failing to move for a fitness hearing before trial. Dominguez I, 331 Ill. App. 3d at 1014-15, 1017. Subsequently, on June 5, 2003, defendant filed a timely postconviction petition. The petition claimed that defendant‘s trial attorneys were ineffective for (1) failing to tender or recommend that defendant tender a jury instruction on the lesser included offense of involuntary manslaughter; (2) failing to have the alleged murder weapon independently examined;
On August 5, 2003, the trial court summarily dismissed the postconviction petition as frivolous and patently without merit. Specifically, the court ruled that defendant‘s trial counsel was not ineffective, because (1) thе failure to tender the lesser included offense instruction was the result of an “all-or-nothing” trial strategy decided upon by defendant and his counsel; (2) the failure to have the weapon independently examined was a matter of trial strategy, and defendant did not provide an affidavit of a potential witness or an explanation for its absencе; (3) the alleged need for an interpreter conflicted with the record and the court‘s own observations of and interactions with defendant, all of which demonstrated that defendant was able to communicate effectively with his attorneys; and (4) the claim as to counsel‘s failure to investigate defendant‘s mental health was not supported by any evidence that the court did not already consider when it determined, on defendant‘s posttrial motion for a fitness hearing, that there was no bona fide doubt about defendant‘s fitness. Additionally, the court ruled that its failure to give the lesser included offense instruction sua sponte was not erroneous, because one was not tendered. Finally, the court ruled that defendant‘s clаim that the State violated its obligation under Brady lacked merit because there was no evidence that defendant was unaware of his being medicated or that he could not remember being given drugs. To the contrary, the court found, defendant identified the drugs he ingested, and he detailed their effects.
On August 27, 2003, defendant submitted to the trial court a pro se notice of аppeal from the dismissal of his postconviction petition. On September 4, 2003, interpreting defendant‘s submission as a request that a notice of appeal be filed on his behalf, the court directed the clerk to file one. The same day, the clerk filed a notice of appeal (No. 2-03-1016), which was amended on September 17. Also on Seрtember 4, however, defendant filed a motion to reconsider the dismissal of his petition. The motion asserted that the court had applied the wrong standard and sought to incorporate into the petition some Department of Corrections (DOC) medical records that allegedly constituted new evidence pertaining to defendant‘s fitness. Attаched to the motion were an affidavit of one of defendant‘s trial attorneys, who stated, inter alia, that an interpreter was not used to advise defendant of his right to a lesser included offense instruction, and an affidavit of defendant‘s priest, who stated that defendant‘s trial attorneys had ignored the priest‘s concerns that defendant was unable to understand his аttorneys.
On October 1, 2003, the trial court denied defendant‘s request for a hearing on his motion to reconsider. The court indicated that it could not hear the motion, because the motion was filed within the 90-day period allowed for the court to review the postconviction petition without input from any party. On October 24, 2003, defendant filed a timely notiсe of appeal (No. 2-03-1212) from the court‘s
II. JURISDICTION
Before proceeding to the merits of this case, we must address our jurisdiction. An appellate court has a duty to consider its jurisdiction and to dismiss an appeal if jurisdiction is lacking. Ferguson v. Riverside Medical Center, 111 Ill. 2d 436, 440 (1985); Gilkey v. Scholl, 229 Ill. App. 3d 989, 992 (1992). Even if the parties do not raise the issuе, we must determine our jurisdiction (Carlson v. Powers, 225 Ill. App. 3d 410, 413 (1992)) prior to deciding the merits of an appeal (Steel City Bank v. Village of Orland Hills, 224 Ill. App. 3d 412, 416 (1991)).
On September 4, 2003, defendant filed a notice of appeal from the dismissal of his postconviction petition and a motion to reconsider that dismissal. It is now settled that a defendant may move to reconsider the summary dismissal of his postconviction petition. Blair, 215 Ill. 2d at 451. Here, however, the trial court suggested that defendant‘s mоtion was untimely. We disagree.
The trial court indicated that the motion to reconsider was untimely because it was filed within the 90-day period allowed for the court to review the postconviction petition without input from any party. See
Further, we note that defendant filed his motion to reconsider within 30 days of the dismissal. The summary dismissal of a postconviction petition is a final judgment in a civil proceeding.
As a result of defendant‘s timely motion to reconsider, however, the notice of appeal from the dismissal of defendant‘s postconviction petition, and the amended notice, must be stricken. Although postcon-viction proceedings are civil (Wilson, 37 Ill. 2d at 619-20), appeals therefrom shall be in accordance with the rules governing criminal appeals (
Nonetheless, we have jurisdiction in appeal No. 2-03-1212, the appeal from the refusal to hear defendant‘s motion to reconsider. Further, in that appeal, we may review the dismissal of defendant‘s postconviction petition. Although the notice of appeal specifically assigns error solely in the refusal to hear the motion, the dismissal of the petition was a step in the procedural progression leading to the refusal to hear the motion. Hence, the dismissal is reviewable. Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 435-36 (1979); see also People v. Jones, 207 Ill. 2d 122, 138 (2003).
III. THE SUMMARY DISMISSAL OF DEFENDANT‘S POSTCONVICTION PETITION
Although the trial court explicitly dismissed defendant‘s postconviction petition as frivolous and patently without merit (
Although we addressed defendant‘s contention in Dominguez II, 356 Ill. App. 3d at 877, we need not do so here. Assuming that the trial court applied thе wrong standard, we are not required to reverse and remand. Indeed, we may affirm, on any proper ground, a procedurally proper summary dismissal that was based on an improper ground. See People v. Quigley, 365 Ill. App. 3d 617, 619 (2006). Here, as the trial court summarily dismissed the postconviction petition within 90 days and without the input of any party, the dismissal was procedurally proper. See Quigley, 365 Ill. App. 3d at 619. Thus, we may apply the proper standard in the first instance and affirm if, in accordance with that standard, the summary dismissal is justified.
In Dominguez II, 356 Ill. App. 3d at 884, we determined that defendant‘s postconviction petition stated the gist of a claim that his trial attorneys were ineffective for failing to tender or recommend that defendant tender a jury instruction on the lesser included оffense of involuntary manslaughter. Although we noted that, on direct appeal, we had rejected “the same claim,” we observed that res judicata was an invalid basis for summary dismissal. Dominguez II, 356 Ill. App. 3d at 884. Thus, we reversed and remanded. However, as we have noted here, the supreme court in Blair held that the determination of a gist of a constitutional claim is subject to thе application of res judicata, as well as forfeiture. See Blair, 215 Ill. 2d at 445-46. Thus, we now consider the impact of Blair.
In his supplemental brief, defendant appears to concede that res judicata and forfeiture would preclude his postconviction petition. However, he asserts that we should invoke the “fundamental fairness” exception to res judicata and forfeiture. See Blair, 215 Ill. 2d at 450. Specifically, he asserts that it would be unfair to prevent him from litigating (1) whether trial counsel was ineffective for failing to tender or recommend the jury instruction on the lesser included offense; and (2) whether trial counsel was ineffective for failing to investigate
Whether counsel was ineffective for failing to tender or recommend the instruction was addressed on direct appeal (Dominguez I, 331 Ill. App. 3d at 1014-15) and thus is subject to res judicata (People v. Williams, 209 Ill. 2d 227, 233 (2004)).1 In this context, the “fundamental fairness” exception “has been applied most typically where the right relied upon in the post-conviction proceеdings has been recognized for the first time after the direct appeal.” People v. Shriner, 262 Ill. App. 3d 10, 13 (1994). At a minimum, there must be some compelling fact beyond the mere allegation that, on direct ap-
peal, the issue was resolved incorrectly. See Shriner, 262 Ill. App. 3d at 13-15 (and cases cited therein).
Here, in essence, defendant merely reiterates that his trial counsel was ineffective for failing to tender or recommend the instruction. That is, he essentially asserts only thаt we erred in rejecting that claim when he presented it on direct appeal. As noted, however, that is not enough. Indeed, to determine “that a petitioner may avoid application of the res judicata doctrine by claiming that an issue was incorrectly decided in the direct appeal would eviscerate the res judicata doctrine‘s application to post-conviction proceedings.” Shriner, 262 Ill. App. 3d at 15. Clearly, defendant presents no compelling justification for relaxing the strict application of res judicata.
Defendant does point out that, in dismissing his postconviction petition, the trial court stated that it was sympathetic to defendant‘s position and indeed wаs heartbroken by the fact that, had the instruction been tendered, defendant may well have been convicted of involuntary manslaughter instead of first-degree murder. We do not dispute that the failure of the all-or-nothing strategy was unfortunate for defendant. However, as noted on direct appeal (Dominguez I, 331 Ill. App. 3d at 1015), that misfortune does not mean that counsel was ineffective for pursuing that strategy, and it certainly does not present a fundamental unfairness that warrants relaxing res judicata.
Defendant next submits that fundamental fairness requires that he be allowed to litigate that counsel was ineffective for failing to investigate defendant‘s mental health and, alternatively, that the State violated Brady. At least as they were stated in the postconviction petition, these claims are substantially different from the second claim noted above that we addressed on direct appeal, i.e., that counsel was ineffective for failing to move for a fitness hearing before trial. See Dominguez I, 331 Ill. App. 3d at 1017. Thus, these claims are subject not to res judicata but to forfeiture. See Williams, 209 Ill. 2d at 233. In that context, the “fundamental fairness” exception requires the defendant to show “cognizable
In any event, the only fact defendant submits that сould even approach “cause” is that, despite his repeated requests, he could not obtain the DOC records until he had filed his postconviction petition. Assuming “cause,” however, he does not establish “prejudice,” because those records do not satisfy the standard for granting a new trial. See People v. Orange, 195 Ill. 2d 437, 450 (2001). Specifically, they are insufficient bеcause they are merely cumulative. See Orange, 195 Ill. 2d at 451. Indeed, defendant asserts that the records demonstrate that he was taking psychotropic medications that produced auditory hallucinations and clouded his judgment. However, on defendant‘s posttrial motion for a fitness hearing, a psychologist testified that defendant was taking psychotroрic medications and exhibiting auditory hallucinations and an inability to process information. We detailed that testimony on direct appeal. Dominguez I, 331 Ill. App. 3d at 1011-12. Thus, to the extent that the unavailability of the DOC records was “cause” for defendant‘s failure to raise his postconviction claims on direct appeal, the claimed errors certainly caused him no “prejudice.”
IV. CONCLUSION
Dominguez II is vacated. Appeal No. 2-03-1016 is dismissed. In appeal No. 2-03-1212, the judgment of the circuit court of Lake County is affirmed.
No. 2-03-1016, Appeal dismissed.
No. 2-03-1212, Affirmed.
O‘MALLEY and BYRNE, JJ., concur.