*1 (No. 72667.
THE PEOPLE OF THE ILLINOIS, STATE OF Appel
lee, ERICKSON, v. PAUL S. Appellant. Opinion July Rehearing denied October 1994. filed 1994. *2 McMORROW, J., J., by HARRISON, joined dissenting. *3 Wesendorf, Fry, (Kyle Rita A. Defender As- Public Defender, counsel), sistant Public of and Christina M. Reinhard, Chicago, Tchen of and Rawn Howard all for appellant. Burris, General, of Attorney Springfield,
Roland W. (Ter- Attorney, Chicago and Jack State’s of O’Malley, General, Madsen, Attorney Chicago, ence M. of Assistant Goldfarb, McCurry and Michael and Renee G. Kenneth Golden, counsel), Attorneys, for the Assistant State’s of People.
85 opinion the the FREEMAN delivered JUSTICE court: waiving jury him, de convicted that had
After raping Elizabeth to death for fendant was sentenced murdering concealing her, the homicide. Launer, and sentence This court affirmed the convictions 271.) appeal. (People Ill. 2d direct v. Erickson Supreme review After Court declined the United States (Erickson 1017, 100 Ed. 2d v. Illinois 486 U.S. L. 1754), pursued, unsuccessfully, 216, 108 S. Ct. (Ill. par. 1989, 38, ch. relief Stat. Rev. 1) County. Defendant in the circuit court of Cook 122— (134 petition appeals dismissal his for that relief 651(a)),seeking, alternatively, Ill. 2d remand for R. hearing sentencing hearing. evidentiary on it or new We affirm. opinion cir-
As this court’s earlier summarizes the only sentence, cumstances of convictions and necessary facts issues are understand the raised noted.
THE TESTIMONYOF JOHN WELICZKO learning charges against son, After of the their parents sought out, themselves, the defendant’s professional counseling (See Weliczko.
services John 285.) eventually Erickson, Ill. 2d at testifying defense, as the extended his services to the during sentencing sole witness on defendant’s behalf phase of the trial. give opinion
It was intended that Weliczkowould psychological expert health that a as mental explained condition (See Rev. defendant’s criminal behavior. Ill. 1(c)(2); par. 38, Erickson, 117 Ill. 2d at Stat. ch. 9— 301.) testify might have Weliczko did as to what lay acts. But he did so as a accounted for defendant’s judge having qualify person, him as trial refused to expert. *4 Erickson, Ill. 301. 117 2d at See 86 good
There was reason for this. In relating credentials, Weliczko had stated that he held a master’s degree in psychology from University Harvard doctorate the field from the University Chicago. Weliczko, fact, was not trained in psychology.
Cross-examined background, about his admitted the Harvard degree master’s was in theology. doctorate, As for the it was a ministry degree in pastoral counseling Further, and psychology. the degree-granting institution was not the University Chicago but Chicago Theological Seminary, an entity affiliated with university.
Weliczko did manage
to offer
practiced
that he
and,
psychotherapy,
therefore, was,
like a licensed
psychologist,
recognized to
abe mental health care
provider.
that,
He stated
like a psychologist, a psycho
therapist
could
person
evaluate a
and arrive at "some
what
the same conclusions”
person’s
about
mental
health.
reasons,
For those
it appears,
judge
the trial
considered
opinion,
Weliczko’s
albeit as a lay person,
and accepted into evidence his written "psychological”
Erickson,
evaluation of defendant. See
The misrepresentation of professional credentials be a would serious concern but for the fact that Welicz- for, defense, ko by, was retained and testified *5 fundamentally more But the claim is even the State. testimony might have flawed: whatever effect Weliczko’s challenged credentials were when his apparent had was to take issue opportunity The on cross-examination. therefore on direct testimony was with Weliczko’s in a post-conviction in a attack not collateral appeal, proceeding. have been a claim which could
Failure to raise which a default appeal procedural direct addressed on merits in a of the claim’s results bar to consideration (1988), v. Albanese post-conviction proceeding. (People a 100, 104-05.) Excused in limited circumstances 125 Ill. 2d (see 264, 274), (1992), Ill. v. Flores 153 2d People acknowledgment of a default forces procedural result of any concern in such finality, a conviction’s an elemental (see (1988), v. Free 122 Ill. 2d proceeding People 378). procedural bar attempts
Defendant to skirt exception an which looks to matters which were under a appeal. points a of the record on direct He part not Theolog- transcript Chicago of Weliczko’s from the copy an at Gordon Seminary ical and an affidavit of official Massachusetts, Wenham, which College in shows Welicz- degree there. philosophy ko earned debunked Weliczko’s Defendant concedes the State that he But he insists a psychologist. assertion by the affidavit injurious "perjury” different is shown is, actually lied about and documents: holding degree psychology. in the field of argument glosses why reason over the may given be relaxed matters procedural properly bar all normally trial The bar reaches to outside the record. merely were not— matters that could have been —not Thus, support the mere fact that earlier raised. trial record is papers contained in not claim is only immaterial. occurs Reason to relax the bar largely why also papers explains when what is offered in the supports the claim it could not have been raised appeal. direct example, may preclude
For the default alleg ineffective-assistance claim for what trial counsel (See edly ought presenting to have done in a defense. generally (1993), 324, 336-37; 157 Ill. 2d People v. Hall (1994), 325; 159 Ill. 2d People v. Kokoraleis v. People 303, 308-09; 129 Ill. 2d see also Owens Perry (7th 1983), (collecting Cir. 702 F.2d Fairman cases).) appellate Illinois An ineffective-assistance claim appeal based on what the record on direct discloses subject is, course, counsel did in fact do to the usual (See procedural default rule. People v. Kokoraleis 325.) ought 159 Ill. 2d aBut claim based on what *6 may depend proof have been done on of matters which precisely could not have been in included the record allegedly representation. because of the deficient But (barring 19, see 109 Ill. 2d v. People Jones consideration of a claim of counsel’s ineffectiveness for presenting not record). evidence which was included in the trial nothing
There in the content of the and affidavit offering documents here more than what is from evident resulting prejudice the record itself. The issue of from testimony Weliczko’s could have been raised on direct appeal testimony during based on the elicited sentencing hearing. aca- Weliczkohad admitted that his background theology ministry demic was in and and psychologist. that, fact, he not a The admissions fixed in of the were the record as result cross- no examination. affidavit documents reveal testimony. Finding more than Weliczko’sown no reason procedural default, must to excuse the defendant’s claim be dismissed. AT THE SENTENCING
ASSISTANCEOF COUNSEL PHASE representation was Defendant claims his counsel’s pro- trial sentencing phase at the so deficient identified, such basis is not Although failed. its cess sixth and fourteenth of the protections claim is rooted (See U.S. United States Constitution. amendments of the Washington Strickland v. VI, XIV; Const., amends. 2052.) It 104 S. Ct. 80 L. Ed. 2d 466 U.S. represented who be noted that counsel should appeal him direct or sentencing on represent at did proceeding. grounds independently Defendant asserts several directly to his claim. Two relate Weliczko’s support verify to the failure to testimony. points Defendant first argues proffering He then Weliczko’s credentials. actually undermined the defense testimony Weliczko’s strategy. Again, defen point may
Neither now be considered. arguments those was on opportunity dant’s to raise Any may there have been appeal. inadequacy direct representation respect counsel’s with to Weliczko with Defen was evident when Weliczko was cross-examined. representation dant failed to take issue with that doing barred from appeal procedurally direct and so is 104-05) Albanese, absent (People so here 125 Ill. 2d exception. some We find none. indepen- failed to
Defendant next asserts counsel dently investigate present mitigating other evi- dence, including competent psychological profile. De- *7 argues would show he had fendant that that evidence emotional, psychological, of endured childhood history of alcohol and sexual abuse and that he had reports of two drug points addiction. Defendant background in confirm- psychologists which recount acts. One adds the factor ing explain it could defendant’s also to affidavits from injury. points of head Defendant was a They offer that defendant two former teachers. 90
well-adjusted student and that news of his involvement in the crimes came as a shock.
The ever present duty
independent
investigation
(see
in a criminal defense effort
United States v. De
(D.C.
209-10)
1979),
196,
coster
Cir.
624 F.2d
is to be
judged using a
light
standard of
all
reasonableness
(Strickland,
presented
691,
circumstances
Initially, Weliczko, who, it noting bears it remembered, must be by was retained defendant’s own parents, already generated had a "psychological” Ignoring, evaluation. proper as would be in separately issue, analyzing this ineffectiveness claim for verifying training in psychology Weliczko’s barred, the evaluation’s existence would seem reason enough to dismiss the claim that counsel was ineffective having suggests for not obtained another. The just State disposition. such a But argument fails substantively as well. may against
Courts
resolve ineffectiveness
claims
two-part
test of Strickland v. Washington
668,
674,
2052, reaching only
U.S.
80 L. Ed. 2d
104 S. Ct.
the prejudice component,
prejudice
for lack of
renders
performance.
irrelevant
the issue of counsel’s
(People
504, 525-27, adopting
Albanese
104 Ill. 2d
Strick
2052.)
land,
466 U.S.
80 L. Ed. 2d
104 S. Ct.
error,
looking
findings
That involves
at the
unaffected
accounting
remaining findings,
the effect of
error
end,
answering,
in the
whether the decision would
(Strickland,
"reasonably likely” have been different.
695-96,
698-99,
L.
2d at
91
'nullification,’ and the
arbitrariness, whimsy, caprice,
698,
695,
2d at
(Strickland,
80 L. Ed.
at
466 U.S.
like”
2068)
given
observation
important
at
104 S. Ct.
—an
have elected
State,
could
that,
the sentencer
in this
be
found to
any
for
reason
penalty
the death
preclude
(Ill.
1989,
38, par.
ch.
Stat.
mitigating
Rev.
sufficiently
1(h)).
may
the assessment
importantly,
Just as
9—
decision”
process of
the actual
include "evidence about
the proceedings
the record of
part
is a
of
if that evidence
Strickland,
80 L. Ed. 2d
466 U.S. at
being reviewed.
at
The unaffected juveniles old, the aid of two enlisted years bind, isolate, gag a 15- methodically plan chart a her, stabbing her to raping of year-old girl purposes (See Erick end, concealing corpse. death, and, in the 279-83.) crimes, defendant son, For those 117 Ill. 2d at stabbing immedi bragged He about the was remorseless. after days crimes He boasted of the ately after the deed. county in a later when detained did so much and even evidence, includ awaiting aggravating trial. Other jail knife rape point at ing the commission of another one, of sexual pattern attests to some third threatened against women. assault notwithstanding, what
Any laxity of counsel not show claim does the ineffectiveness offered to bolster different, been "reasonably likely” have the result would Briefly, the arbitrariness. excluding possibility could, best, suggest what only reports psychologists’ behavior criminal explained defendant’s may have after years produced were 1982. The evaluations July of aid of the trial and, without apparently, the crimes testimony, revealed, through witnesses’ record, which The affidavits actual behavior. high and one from teachers, grade one from fourth contact maintained close school, neither disclose that with defendant after he left their respective classrooms. And, if anything, they show polite, to be intelligent, and engaging, not a person troubled psyche disturbed might which account for his criminal behavior.
The record is revealing also process as to the of deci- *9 sion, underscoring the lack prejudice might which have been by any occasioned deficiencies of counsel. The judge, trial whom defendant impose sentence, elected to actually took into account the notion that defendant may have suffered from a personality disorder. In addition, the judge trial noted that a presentencing investigation report on defendant revealed a background free of what might normally be given encountered the nature then, of the crimes. It appear, would the judge trial considered, on his own rejected, gist the of what defendant hoped might the evidence show. issues,
Defendant raises two tangentially other re- lated to above, claims of ineffectiveness addressed insisting supports each the need for an evidentiary hearing petition. on the judge
Defendant claims the who post- ruled on the conviction petition improperly by did so guessing at how original the judge, himself, trial who recused would have in light ruled of the evidence defendant claims should have been presented.
Both defendant’s counsel and the State judge ruling conceded that pe- on defendant’s tition reviewing could do so after transcript the trial and other in judge evidence the record. The stated that did, indeed, he, he review the entire record and that himself, judge, the trial petition found the to be judge original without merit. The did refer to the trial name, judge stating he reviewed the materials supporting petition just sentencing defendant’s as the judge would have had the materials been presented however, remarks, of those reading A fair
mitigation. peti- evaluated judge not show that does and the counsel as defense other than any way tion No way prej- only possible. would be conceded State here. udice is found exe- had parents that his *10 to 301-02), with a reluctance would be inconsistent
2d at Further, behalf. expense additional on defendant’s incur already noted, defendant had an evaluation of as earlier Weliczko’s reason to doubt generated. been Without existence, conjecture the evaluation’s competency, fees, collecting explains with preoccupation about produce failure to another. TO GRANT CONTINUANCE
REFUSAL evidentiary is entitled to asserts he Defendant a the refusal of continu related to hearing for reasons evaluation. psychological competent a produce ance to raised, on rejected, argument was the same But 301-02.) The (Erickson, 117 Ill. 2d at appeal. direct in a relitigated be matter cannot v. judicata. People of res principles proceeding under Del Vecchio (1989), Albanese, 265, 284; 129 Ill. 2d 125 Ill. 104-05, 2d at People Silagy v. citing 116 Ill. 2d 357, 365.
WAIVER OF JURY FOR SENTENCING Defendant claims he jury waived the for the sentenc ing phase knowing without if juror even one voted (See spare to penalty his life death impossible. was Ill. 1(h).) 38, Rev. Stat. par. But, fact, ch. defen 9— dant answered affirmatively when trial judge asked that, if he understood finding like the guilt, death had to be jury’s choice, meaning unanimous that all 12 jurors agree had to penalty. Nevertheless, on the de fendant states that had he better understood the una nimity requirement, he would not jury have waived the sentencing. for
Defendant concedes that on appeal argued, direct he success, judge’s without admonishment was (See 295-96.) Erickson, insufficient. 117 Ill. 2d at How ever, he insists different issue is raised here: whether an evidentiary hearing is required generated because he a sworn statement revealing truly he did not understand unanimity requirement.
It is difficult to see how that different characteriza might change tion of the issue the nature of the claim. underlying question remains whether there was knowing, intelligent, voluntary right waiver of the a jury sentencing purposes. question for That Erickson, positively appeal. answered on direct See 295-96; People Ramey Ill. 2d see also 152 Ill. (holding knowledge 2d 59-60 unanimity of the requirement is immaterial assessment whether valid). a jury sentencing defendant’s waiver of Presumably, argument is that if, knowing intelligent waiver could not been or have de- understanding jurors agree that all 12 had spite *11 death, unenlightened he implication stood of the juror was if admonishment it. But
lone could block was, its sufficient, understood it and defendant meaning, he did, it little that he he can matter said ignorant he real- of a nuance now he was now swears under- the record that he answer for izes. Defendant’s he the assertion that did belies stood admonishment unanimity really workings of the understand the evidentiary hearing on the for an There is no need rule. issue. AGAINST
WAIVER OF PRIVILEGE SELF-INCRIMINATION testify during guilt phase elected to Defendant only complains did because of trial. now he so He rhetorically whether defendant asked counsel had many go prison years” without "would like to *** "having story.” assert told Defendant does not his testify. right He he not aware of his not to argues only question was tantamount counsel’s defen- it assured conviction unless coercion because dant did so. question case, the is more the realities of this
Given reasonably as advice defense counsel characterized expected imparted to defendant. be to have would testimony was, fact, the sum and Defendant’s own offered No other evidence was substance of defense. assembled, case the State to counter the considerable testimony criminal from the other which included participants. DEATH PENALTY TO THE ILLINOIS
CHALLENGE SCHEME constitutionality Defendant last attacks the Specifically, penalty defendant focuses death scheme. imposed requirement absent miti- that death will be argues gation preclude it. Defendant also sufficient to right provide awith defendants statute does not *12 discovery. arguments The rejected, were respectively, v. People Strickland 489, 538-40, 154 Ill. 2d and People Foster 119 Ill. 2d 101-03. We decline to reconsider those conclusions. above,
For the reasons we the judgment affirm of the circuit court. We direct the clerk of this court to setting Tuesday, 15, 1994, enter order November as death, on date which the sentence of by entered circuit of County, court Cook shall be carried out. De fendant shall be executed in the manner provided by (Ill. 5.) 38, par. law. Rev. Stat. ch. The clerk 119— of shall this court send a of copy certified this mandate Corrections, to the Director of to the warden of Stat Center, eville Correctional and to the of warden institution where defendant now confined.
Affirmed. McMORROW, JUSTICE dissenting: I I dissent because believe the defendant is entitled evidentiary hearing prove allegations to an his to of counsel; ineffective of assistance should not proving allegations be barred from under the doc- trine waiver.
The defendant’s a petition raises allegation serious that his trial counsel was ineffective allegedly because he failed to discover Weliczko’s fraud- perjured misrepresentation ulent and that Weliczko was a trained provider qualified testify mental health regarding whether from a defendant suffered substantial alleged emotional or mental This disability. ineffective- compounded attorney’s alleged ness was failure investigate testimony truly present provided qualified experts mental health who could have mitigating support claim critical evidence to defendant’s he be spared that should the death sentence because he a from disturbance. suffered substantial mental at his death theory defendant’s defense a hearing suffered from severe was that he sentence at the of the of- mental time emotional or disturbance was in his behalf John Defendant’s sole witness fenses. Weliczko, represented on direct examination who cross-examination, Weliczko psychologist. On he was had was and that he psychologist that he not admitted with examination wholly forthright been direct However, main- to his credentials. Weliczko respect had was a and that he "psychotherapist” tained he training, background, experience as substantial provider. mental health hearing, trial sentencing
Prior qualified psycholo- thought counsel *13 hearing that gist. only sentencing It was at the defense not a psychologist. learned that counsel Weliczko during the In view of Weliczko’s admissions defen- sentencing hearing, was aware dant’s the trial court re- with completely that Weliczko had not been truthful Al- provider. as a mental health spect his credentials recognize as an though the trial court did not trial believed that Welicz- "expert,” the court nonetheless opinion an psychotherapist provide was a who could ko sentencing hearing. to the court at As useful result, testimony the trial court admitted Weliczko’s psychological evidence and relied on into Weliczko’s deciding whether evaluation of defendant impose death sentence.
However, according post- to the defendant’s the trial court and defen- petition, conviction what had did not know was that Weliczko dant’s trial counsel or bona background, experience training, no fide addition, In the defendant’s psychology whatsoever. trial court post-conviction petition indicates trial did know Welicz- and defendant’s counsel of the de- and evaluation assessment psychological ko’s Moreover, of affidavits utterly unreliable. fendant was qualified providers, mental health as attached to the post-conviction petition, defendant’s support defendant’s claim he significant suffered from a mental distur- bance. These affidavits further indicate that Weliczko’s report a completely contained incompe- erroneous psychological tent evaluation of the defendant.
The majority is incorrect to hold that defendant’s challenges testimony to Weliczko’s are waived. The waived, claims are not they argu- because raise new ments based new evidence that was not part record from defendant’s direct appeal. majority wrong also when it finds preju- that defendant was not diced the absence of the psychological additional evi- presented dence support post-conviction defendant’s petition. allegations Whether of ineffective assistance counsel are to satisfy sufficient the stan- dard of Strickland v. Washington 668, 466 U.S. 80 L. Ed. 2d 104 S. Ct. must be determined following evidentiary an hearing, lawfully and cannot be appeal determined on an trial from the court’s dis- missal prior of the petition to eviden- tiary hearing. reasons,
For I disagree majority’s these with the grant evidentiary hearing refusal with respect allegation deprived to his that he was of the effective assistance of counsel at his death sentence hearing. *14 Challenges Testimony
I. Waiver of
to Weliczko’s
majority
The
failure
refuses
consider whether
of
trial
defendant’s
counsel
to learn
that Weliczko
any
experience
lacked
credentials
or
in the mental
may
deprived
health field
have
of the
effective
majority
of
The
assistance
counsel.
claims
opportunity
argument
regard
"defendant’s
to raise” an
ing
verify
failure
defense
counsel’s
"to
Weliczko’s
(161
2d at
appeal.”
arose "on direct
Ill.
credentials”
89.)
there
inadequacy
"[a]ny
offers that
majority
The
with re
representation
have been with counsel’s
may
when Weliczko was cross-
was evident
spect to Weliczko
89.)
(161
majority concludes
Ill. 2d at
The
examined.”
represen
take
with that
defendant "failed to
issue
is
barred
appeal
procedurally
on
and so
tation
direct
89;
***.”
2d at
see
161 Ill.
doing
[citation]
from
so here
I with the of argument ineffective assistance counsel defendant’s waived, testimony is not respect to the Weliczko with issue, presented pertinent because the evidence this petition, in evi- the defendant record of his trial not in the appear dence does Also, supports new court this evidence proceedings. not make and argument the defendant did could testimony was appeal: make on direct that Weliczko’s and had no bona perjured fraudulent because Weliczko psychology training, experience, background or fide report of his and that would warrant introduction opinions. waiver, justify mini- finding majority
To its claim, reasoning the nature of as mizes the defendant’s follows: nothing
"There is in the content the affidavit and offering than what is evident from documents here more prejudice resulting the record The issue of from itself. testimony could have been raised on direct Weliczko’s during testimony elicited the sentenc appeal based on ing hearing. that his academic Weliczko had admitted that, background ministry theology fact, psychologist. fixed he was not The admissions were in the of the cross-examination. af record as result no fidavit and documents reveal more than Weliczko’s procedural testimony. Finding no own reason to excuse default, Ill. claim must be dismissed.” 161 2d at 88.
However, more what was defendant does offer than *15 appellate evident from the record. Defendant alleged glaring First, two testimony. falsities Weliczko’s trial Weliczko testified on cross-examination that he earned degree doctorate in counseling psychology from the Chicago Theological Seminary. According to defendant’s post-conviction petition, Weliczko did not receive degree psychology; in counseling he received a doctor of degree. Second, ministry Weliczko testified sentencing hearing degree he earned a B.S. psychology philosophy and College. from Gordon Accord- ing to post-conviction defendant’s petition, Weliczko did not a B.S. degree receive in psychology and philosophy; degree he received B.A. in philosophy. Consequently, contrary to trial testimony, Weliczko’s alleg- Weliczko edly education, did not have the background, training or in psychology qualify provide to him to a psychological evaluation defendant.
The new support evidence submitted in of defen- post-conviction dant’s petition far beyond went revelations which Weliczko admitted when he testi- fied at the sentencing hearing. The record reveals that the trial court opinion admitted Weliczko’s upon based the trial allegedly court’s mistaken belief qualified that Weliczko was a psychotherapist, whose opinion regarding defendant’s mental and emotional condition could aid the court its decision whether impose the penalty. Contrary death to the impressions court, however, of the trial allegedly was not a qualified provider, mental health his opinion was genuine of no therefore value the trial court. Accord- ing post-conviction petition, to defendant’s the trial erroneously upon court relied Weliczko’s evaluation of defendant, although allegedly that evaluation incompetent grossly inaccurate assessment and emotional defendant’s mental condition. Defen- petition alleged report dant’s competent prepared Weliczko "does constitute report” psychiatric it "deviates evaluation because customarily significantly in a found from what ways.” psychiatric report competent De- in a number of qualified mental health the affidavits fendant offered *16 report professionals, that Weliczko’s who stated wholly inadequate, grossly inaccurate, and contained utterly psychological the defen- evaluation of erroneous dant. support psychological in of offered evaluations post-conviction petition de- indicated that
defendant’s dysfunctional and been raised in a troubled fendant had family neurological from deficit caused and suffered injuries polysubstance years and of abuse. head several comparison, that defendant suf- In Weliczko testified personality disorder, and no refer- made fered from dysfunctional childhood, to trouble ence defendant’s suffering family upbringing, from or defendant’s neurological damage or abuse. substance noteworthy peti- post-conviction in
It is also relating tion, documents to defendant submitted various prosecution pled guilty a Federal which Weliczko by attorneys in the bank fraud. Memoranda written Attorney’s United States office indicate that companies, pattern defrauding had a of individuals and testimony in the instant cause as an and noted his false example pattern of this The evidence of behavior. pre- pattern perjury of fraud was not Weliczko’s trial court at defendant’s death sentence sented to the hearing. support of defen- the evidence submitted
Given post-convictionpetition, it difficult to discern is dant’s majority’s to find that de- decision lawful basis has his ineffective-assistance-of-counsel fendant waived majority wholly ignores argument. The that the defen- respect arguments, with the failure investí- dant’s gate and present evidence that Weliczko no had creden tials to provide any testimony regarding a psychological profile defendant, rely upon evidence outside the record such, appeal. direct As defendant’s arguments, evidence, which relied upon this could not been have raised his direct appeal, and are post-conviction not waived in defendant’s In proceeding. (1993), 324, v. People Hall 157 Ill. 2d this court stated: *** "Defendant contends that his trial counsel failed to provide during effective assistance the death sentence hearing ***. [Citation.] Defendant claims that his trial present, counsel failed to investigate, meaningful or even mitigation evidence. initially responds
The State
that defendant has waived
post-conviction
this issue in
by failing
this
appeal
to raise
it
appeal.
on direct
It
true that where a
petitioner
previously
has
taken
appeal
direct
from
conviction,
judgment of
pre
issues that could have been
appeal
sented on direct
but were not are deemed waived.
People
274; People
Flores
Ill. 2d
v. James
46 Ill. 2d
74.
However,
post-conviction claim relies on
*17
alleged
several
mitigating witnesses. Those
affidavits of
part
appeal.
were not
the
record
direct
affidavits
of
Thus,
could not have raised the issue in his
defendant
appeal. Accordingly,
direct
the
is
issue
not waived in a
Eddmonds,
528;
post-conviction proceeding.
2d
143 Ill.
at
303,
People
(1989),
(Emphasis
v. Owens
129 Ill. 2d
308-09.”
added.) Hall,
and because and clear, unambiguous, respected prece- conflicts with in example, People dent this court. For v. Eddmonds
103 (1989), 129 501, v. Owens (1991), People Ill. 2d 143 applied not because 303, the waiver doctrine Ill. 2d did the defendants upon by relied the evidence In both appeals. direct record of their in the appear a defendant decisions, held that court this petitions, present, permitted have been could not matters that based on allegations outside they arose because appeal, in a direct presented This original proceedings. the trial court’s scope deci recognized other has been long-standing rule court. See appellate as well as our sions of this court Owens, at 308- 528; 129 Ill. 2d Eddmonds, 143 Ill. 2d 18, 25-26; (1986), People 09; 111 Ill. 2d v. People Wright 79, 91; (1984), People Stepheny v. 105 Ill. 2d v. Gaines (1967), 153, 155; Thomas 38 (1970), People v. 46 Ill. 2d (1992), Ill. 324-25; 232 321, v. People 2d Ill. Heartfelt (1990), App. Ill. 3d 198, 204; Davis 203 People v. App. 3d 427; 420, (1989), 129, 139; App. 185 Ill. 3d v. Lee People 1016, 1019; (1988), People App. Ill. 3d Taylor v. 165 People 1007, 1009; v. (1987), People App. Ill. 3d v. Mitchell 163 267, 270; Nix (1986), People v. App. Ill. 3d Cobb 150 (1985), 48, 51; v. Carroll (1986), App. People 150 Ill. 3d (1981), 367; 94 Ill. 365, v. Edsall App. People 131 Ill. 3d (1980), Ill. 469, 472-73; 91 Mengedoht v. App. People 3d (1980), App. 239, 241; 83 Ill. People v. Edwards App. 3d 840, (1979), 131; App. 74 Ill. 3d 128, v. Turner People 3d 237; 234, (1978), 844; App. Ill. 3d Owsley v. 66 People 424; 422, (1978), People App. Ill. 3d Hudson 65 People v. 33, 35; Dennis (1977), People v. App. 50 Ill. 3d v. Summers 493, 495; v. Johnson People see also (1973), 14 Ill. 3d App. (1985), Ill. 2d 227; v. Jones People 154 Ill. 2d 270, Ill. 2d 271. 23-24; Myers v. People (1994), 161 Thompkins recently, People Most acknowledged and reaf again 2d this court Ill. *18 distinction important is valid firmed that there that arguments ineffective-assistance-of-counsel between are waived arguments because the rely upon matters presented trial, at and ineffective-assistance-of-counsel arguments are not waived for post-conviction review arguments because the present additional matter not found in the record of the trial proceedings. court The majority’s contrary result in the instant cause is patently legal unfounded in precedent of this court.
The majority’s waiver analysis in the present case is untenable, also reasoning because its rejected has been or disavowed several Federal appeal. courts of In (7th Guinan v. United States 1993), 468, Cir. 6 F.3d Seventh Circuit Court of Appeals adopted precedent, particularly with respect preserving an ineffective- argument assistance-of-counsel for review, is similar to the precedent of this court which the majority tacitly now overrules. The Seventh Circuit has held that "if a postpones raising the issue of ineffective assistance of counsel until stage collateral he must have a valid reason for the 472.) (Guinan, postponement ***.” 6 F.3d at According court, to the one "valid postponement reason” required ineffective-assistance-of-counsel claim proof of facts outside the record of the appeal. direct 472.) (Guinan, 6 F.3d at In concurring opinion, Judge "[tjhree Easterbrook noted that [Federal] courts of appeals have held that ineffective-assistance are claims presented forfeited when not appeal” on direct and that the "Solicitor General has confessed error on all three” for writ of certiorari were filed petitions cases once (Guinan, before the United States Supreme Court 6 F.3d (2d 475, citing Billy-Eko v. United States 1992), Cir. vacated on 281, error 968 F.2d confession of 901, 685, 2989; U.S. 125 L. Ed. 2d 113 S. Ct. Chappell (7th United States 1989), vacated on 384, Cir. 878 F.2d error 494 U.S. 108 L. Ed. 2d confession of 1800; Diaz-Albertini v. United States 110 S. Ct.
105 1990) (10th 498 U.S. vacated (unpublished), Cir. 776). 111 S. Ct. 112 L. Ed. 2d Guinan, Judge Easter- concurring opinion In his following cogent observations: made the brook also system under which my colleagues, yearn I for a "Like Unfortunately, inef- case. appeal resolves the entire one dispo- once-and-for-all assistance of counsel eludes fective expected to attack his own Trial counsel cannot be sition. lawyer representing the defen- performance, and a new impossible upset a convic- appeal that it is dant on finds Why impos- by pointing predecessor’s actions. tion to his complete prevents record Because the absence of sible? deficient trial No matter how odd or definitive action. seem, lawyer may may have performance counsel’s may acting did. Or it [Citations.] had a reason for as he performance overall was sufficient turn out that counsel’s omission, shortcoming despite glaring the did or judge is prejudice the defendant. The trial [Citations.] prejudice, performance and best situated to assess overall yet presented on direct a claim of ineffective assistance appeal appeals [trial] to act without the asks court of *** judge’s views. designed to induce procedure
Rules of
should be
right
litigants
present
their
to the
tribunal
contentions
counsel,
right
at the
time. For ineffective assistance of
wrong
appeals
appeal
is the
tribunal
court of
direct
***
wrong
time.
Failure to call essential witnesses
might
prejudice,
performance
show both deficient
but
say-so
appeal all we will have is defendant’s
on direct
any hope
To
of suc-
an uncalled witness was critical.
have
cess,
enlarge
with affidavits
the defendant must
the record
establishing
testimony
have
what
the witness would
called,
lawyer
provided if
and demonstrate that his
actually
testimony
grossly
potential
aware of this
or
failing
precisely
about it. This is
deficient
to find out
presented on
type
complaint
that should not be
evidentiary
hear-
appeal.
developed
It must be
direct
original.)
ing
(Emphasis in
post-conviction relief].”
[for
Guinan,
As observations show, reasoning in the majority’s concurrence instant cause infirmity: suffers from fundamental it acknowledges never explains or how the defendant brought attention, should have to this court’s in his appeal, direct the merits of his claim that his trial attorney was ineffective because of a failure to determine that Weliczko was a fraud and a sham who had no credentials, experience, background or in psychology, psychotherapy, counseling. or The record from defen appeal dant’s direct does not reveal that Weliczko was a fraud and a In sham. fact this court on direct review specifically explicitly referred as (See People Erickson "psychotherapist.” *20 285.) 271, Ill. 2d The record of appeal defendant’s direct provided necessary would not have the factual basis for arguments the presented by defendant in the present post-conviction proceeding. majority’s ruling, provide
The and its failure to clear guidance decision, respect necessarily with to its places all criminal defendants of this State into a classic "catch-22,” they being where run the risk of in trapped "losing” if example, number of scenarios. For a defen argues dant appeal attorney direct that his was witnesses, ineffective for investigate failure to certain might reject ground the court his claim on the the investigation defendant cannot show what the would revealed, investigation have if the had been performed. v. Williams e.g., People (See, (1991), 173, 258; 147 Ill. 2d 390.) People Orange If 121 Ill. 2d the de argues appeal attorney fendant on direct that his investigate for certain witnesses ineffective failure appellate pertinent and his counsel includes affidavits appeal, may reject in the briefs or record on the court argument theory on the is not permitted supplement appeal the record on with evi dentiary matters outside the record of the trial court e.g., v. Jones People (See, 2d proceedings. 109 Ill. (amendments are appeal direct of record on 23-24 record, add necessary to correct limited to those court).) If the de- trial presented never new material alleging ineffec- petition a post-conviction fendant files investigate certain wit- failure to tive assistance for waived, as it does nesses, may the issue the court deem case, should reasoning that defendant in the present Given the appeal. his claim on direct presented have cause, I how question in instant majority’s ruling able to State will now be criminal defendants this claims based on the merits of their preserve present investigate prior witnesses to trial. a failure to especially will be majority’s The waiver decision bar, courts, trial the criminal trial confusing for ruling, majority’s light review. In our courts of uncertainty, whether claim speculate, is left to one of trial testimony, and ineffective assistance perjured counsel, always be presented must the evidence regardless of whether appeal, direct matters outside argument derives from supporting grave dis- majority performs appellate record. insight guidance or on these in its lack of clear service matters. well-publicized reputation had a
Illinois once requirements that cre having devised *** entirely of labyrinth up made "procedural ated *21 (Marino 561, 567, (1947), 332 U.S. Ragen v. alleys” blind J., 170, 175, (Rutledge, S. Ct. 244 92 L. Ed. 68 from concurring)) effectively insulated the court that chal a defendant’s constitutional ruling on the merits of and sentence. Our Post- criminal conviction lenges to his in 1949 to overcome Hearing adopted Conviction Act (See generally Leighton, Post- shortcomings. these Procedure, Illinois Criminal Conviction Remedies in 568-71.) Unfortunately, majority’s the Ill. L.F. 1966 era, when technical to this earlier decision harkens back procedure rules of were manipulated in order to avoid or preclude substantive review of the criminal defen- arguments. dant’s constitutional Evidentiary II. Denial of Hearing Aside from its determination that defendant has any challenge testimony, waived ma Weliczko’s the jority suggests that trial counsel was not ineffective failing other, qualified to locate mental health providers an expert opinion to offer In defendant’s behalf. this respect, majority the observes the defendant’s argument substantively” "fails two-part and reviews the (See 90-91.) test of Strickland. major Ill. 2d at The ity determines prejudiced by the defendant was not trial mitiga counsel’s failure to locate these additional witnesses, tion because probably the defendant would have been sentenced death if even this additional evi dence had been offered for at consideration the defen original sentencing hearing. dant’s Specifically, majority "[a]ny laxity reasons notwithstanding, of counsel what offered [in is experts] affidavits of the mental health to bolster ineffectiveness claim does not show the result would different, 'reasonably likely’ excluding have been (161 91.) possibility of The ma arbitrariness.” Ill. 2d jority’s reasoning proper is a misstatement of the stan dard petition which judged should be where the has been dismissed petition evidentiary hearing. proper without an standard likely’ 'reasonably not whether the "result would have Rather, proper question different.” is whether been light allegations, the defendant’s when viewed defendant, are sufficient to demon most favorable to the evidentiary strate that the defendant should receive hearing allegations. legal principles These prove (People longstanding. are well established v. Ruiz Thompkins People 148; 161 Ill. 2d *22 1, 25-28; (1989), 132 Ill. 2d v. Caballero 126 Ill. 2d People 248, 259; (1973), 152, 155; People v. Caldwell 55 Ill. 2d (1952), 181, 185; v. v. People People Bernatowicz 413 Ill. (1989), 415, 419; App. Vunetich 185 Ill. 3d v. People (1987), 362, 365; App. 164 Ill. Witherspoon People 3d 262-63.) App. Redmond 146 Ill. 3d For example, appellate our court has stated: Hearing provides remedy
"The a Post-Conviction Act rights for violation of substantial constitutional at trial. hearing, require petitioner In order to the [Citations.] substantially must show that there was a violation of a right. showing constitutional Such a must be [Citations.] allegations conclusory based on factual rather than petitioner statements. A is not entitled an [Citation.] evidentiary hearing petition right. on his as a matter of Rather, [Citations.] it the is function of the pleadings petition to determine whether the is entitled to hearing. trial [Citation.] Where the court determines allegations petition require of the are sufficientto hearing, petitioner opportunity must be afforded an prove allegations. his [Citation.] On review of dismissal petition, appellate court must determine whether petitioner alleged has require sufficient facts to an eviden tiary hearing. [Citation.] making In that determination necessarily allegations this court must look to contained in petition, liberally petitioner construed in favor of [Citation.]” light transcript. as set the record and forth added.) (Emphasis App. 192 Ill. People v. Pittman 3d 946. majority
The present cause does not consider allegations, liberally whether the defendant’s when favor, construed show that the defendant an evidentiary hearing. majority entitled to The en- gages in own sufficiency its review of the of the defen- evidence, though majority dant’s as were the trier of at an evidentiary hearing post- fact on the defendant’s petition. conviction As established the considerable above, precedent proper cited this is not the focus on appeal from the trial dismissal a post- court’s evidentiary in the absence of an petition conviction hearing. "psychologists’ majority also states could, best, only suggest may what have
reports *23 July criminal behavior of of 1982. explained defendant’s years after the crimes produced The evaluations were record, and, without the aid of the trial apparently, revealed, through testimony, defen which witnesses’ (161 91.) major actual Ill. 2d at The dant’s behavior.” weighing a of ity’s analysis impermissibly delves into mental sufficiency by the offered the opinions the were submitted in experts health whose affidavits It is the post-conviction petition. support of defendant’s fact, evidentiary trier of at an prerogative of the to be attached to hearing, significance to consider the the of the mental the circumstance that evaluations years "were after the crimes.” experts produced health (161 91.) Moreover, majori contrary to the Ill. 2d at nothing in the record to show ty’s reasoning, there is "without the prepared whether the evaluations were at 91. trial record.” 161 Ill. 2d aid of the the majority also offers the observation "actually took into account the notion trial court personality disor may have suffered from defendant (161 92.) However, psycholog since the der.” Ill. 2d at an incom by allegedly profile ical offered Weliczko defendant, portrayal inaccurate petent and hearing not sentencing did at defendant’s trial court accurate, psychological bona take into account fide in by defendant those submitted such as evaluations Moreover, petition. support post-conviction of his attached affidavits professionals’ health mental that de indicated petition post-conviction not a neurological impairment, from fendant suffered The ma by Weliczko. suggested as disorder personality pre- that a judge "trial noted jority also states revealed on defendant investigation report sentencing encountered might normally be free of what background 92.) (161 In Ill. 2d crimes.” the nature of the given presented has the defendant petition, post-conviction defendant did that show the evaluations psychological diffi disturbance or "background free of’ enjoy an engages wrongly culty. Again, majority evi the defendant’s weighing and unfair unjustified opportunity allowing the defendant dence without may fact hearing where the trier of evidentiary support of his presents assess the evidence post-conviction petition. several, highly were shows that there
The record by expressed the opinion between significant differences hearing and the views at the death sentence in the affidavits providers the mental health stated peti- support of defendant’s submitted raised in that defendant had been tion. Weliczko stated *** the defendant had "good family, Christian” where *24 by parents. taken care of and cared for been well manipulative, becáme Weliczko stated that defendant friends, and parents fabricate to his frequently would also nothing and cared for but himself. Weliczko highly disrespectful a view testified that defendant had women, women that Weliczko and had relations with Weliczko stressed "[djirty” described as and short-lived. for his "cannot be blamed parents that the defendants’ disorder.” providers health de- of the mental
The affidavits neurological defi- suffering as from scribed defendant years and injuries several head prompted by cit also providers mental health polysubstance abuse. These a troubled childhood that defendant had endured stated had been family in a and that defendant dysfunctional young. he was Given victim of sexual abuse when in the views of Weliczko these marked contrasts those of the mental health providers whose affidavits support post-conviction defendant’s petition, majori- ty’s reasoning ignores the facts shown in the record presently before us. degree
The substantial to which Weliczko’s testi- mony damning to the defendant at his death hearing, sentence and the extent to which his evalua- tions of the defendant differed from by those offered mental professionals health upon relied in defendant’s petition, deserve detailed attention this court. according Weliczko stated that to defendant’s parents, defendant quarrelsome had been "a child” and "basically man,” had been young restless as a although he had had "no unusual disruptions” while he was growing up. Weliczko that parents stated defendant’s said that defendant had "chronic "a history” of lot of illnesses” that the parents suspected were "fabricated.” Weliczko stated that parents represented defendant, especially that a teenager, engaged while lying "a manipulating.” lot of Weliczko testified parents they gave that "felt good nurturing— him a and I say carefully would the term Christian environ- —a ment, good as Roman parents attempting Catholic him bring to church and music things lessons and seemingly are normal young the life of a person growing up. They attempted discipline him as as well provide good home.” Weliczko testified that defen- parents many jobs, dant’s stated that defendant held only periods but for short represented of time. He jobs "[j]ust feeling left these [from] A nothing discontent. kind of functional attitude good enough.”
Weliczko testified that he had interviewed defen- *25 dant on several occasions after defendant was arrested. interview, At the first defendant said that he was "[a]ngry upset” going and and that he felt he was not subsequent that at a fair stated
receive a trial. Weliczko with defendant. interview, women” "discuss[ed] he had many women he defendant how Weliczko asked According to age. years was 17 dated since defendant Weliczko, that "he had dated responded cursory gave a at least 30 women and least or related to said, good enjoyed most of them comment 'And ” comment observed that defendant’s job.’ blow Weliczko very it "wasn’t "kind of took back” and [him] stated that he hearing.” Weliczko enjoyable terms of isolation and loneliness found defendant felt a "sense and with- feelings depression mixed with at times harbored said that defendant also drawal.” Weliczko at himself and great anger, deal of which he directed stated that defen- persons. number of other Weliczko that de- anything, did feel remorseful for dant Weliczko sorry except fendant felt for no one himself. be vi- person that he saw defendant as who could said olent, mostly a sense of frustration and fear. Welicz- from things that defendant would do to seek ko also testified past from others. He stated that defendant’s approval short-lived, because de- relations with women had been "got thought "[l]ike fendant tired of them” and of them they were almost chattel.” personality that defendant’s traits
Weliczko stated personality he a narcissistic revealed that suffered from neu- characterized the disorder as disorder. Weliczko rotic, explained: than pathological. rather grandiose importance this idea of
"The section of self my my exaggerate T achievements somehow had fantasies, talents,’ without preoccupation with women that, 'Somehow I would doubt entered into that realm I something by engaging a woman to do what fulfill do, ability on a real I had no to be intimate wanted but Dirty them off.’ healthy I used them and I cut basis. job, him. relationships and a blow as stated cards, Hallmark feeling point to a of not A of ideal love *26 imaginary fantasy going but an that woman was to take go Exhibitionism, him and off and make it all better. *** idea —***this need for constant attention. The other question personal exploitiveness.” element is no of stated, for example, that defendant "has times, admitted to the fact he spent money many that own, not his and cheated to do that and lied about it things gain and did as favors to favors.” cross-examination, On Weliczko stated that he did any not find evidence that the defendant had been child, abused as and that defendant in a was raised "good, Christian home” and given things had been a lot of children never receive. court,
In his written report, submitted to the Welicz- ko stated that empathy pain "lack[ed] for the report represented of others.” Weliczko’s also that de- fendant "overestimated prowess his sexual and abilities achievement, as a man with unrealistic fantasies of es- pecially with The report women.” stated that defendant relationships 'dropping "described his to as [women] one another,’ and picking up and admitted [that defendant] impregnating report repre- several.” Weliczko’s also engaged sented that defendant ex- "[interpersonal ploitiveness, advantage which others are taken of indulge order one’s own desires or self- *** aggrandizement personal integrity and the rights disregarded.” of others are it report Weliczko’s written "[r]ecommend[ed]” *** experienc- [that defendant] [i]s "must be understood ing diagnosed personality report’s disorder.” The acknowledged that defendant’s "be- recommendations "inability make wise exemplified” havior judged and that unwise choices must be "[t]hose choices” suggested defen- report the court.” Weliczko’s year "for at least one psychiatric dant receive treatment in a also stated: hospital.” report for his disorder. parents cannot be blamed
"[Defendant’s] system judicial society, peers and the are The real causes point of escalate to self-deception to who allowed his *** self-destruction. without since must be administered precautions Suicide intervention, approval need for [defendant’s] psychological that self- aggrandized view may him toward an drive only way saying, ’he was never of inflicted death is his punishment for EVEN guilty’ and deserves NO group in the implication that he contributed faintest *** victim], (mass) life [the destruction of the participation accomplices, and his must [Defendant’s] narcissistically portrayal group as a be viewed reckless, unempathetic teenage preoccupied band *27 young [Defen- men and women. psychologically unstable only guilty party. The blood of dant] cannot be the psychologically excised from the will never be victim Inn, Holiday and those group partied stained who (Emphasis of evidence.” who assisted in the concealment original.) damning by offered In contrast to the evidence Weliczko, experts mental health the affidavits of the post- with defendant’s conjunction submitted petition provide markedly por- a different conviction report pre- The trayal psychological of the defendant. Fisher, a clinical correctional pared by Dr. Brad psychologist stated that the had evaluated psychologist, in 1990 and had reviewed defendant on two occasions tests to reports numerous and administered several condition. psychological evaluate defendant’s was According report, to Dr. Fisher’s defendant 46) 39) (then (then age age Andzia and Elvin adopted days a old. De- only when defendant was few Erickson much older than only sibling, had one brother fendant report stated that defen- the defendant. Dr. Fisher’s during problems "parents reported particular dant’s no academ- early developmental years], either [his this time noted, report also ically socially.” psychologist’s or The that he however, "family report members and Paul that when Paul served as sexually by priest abused was boy altar at the family’s church.” Dr. Fisher also noted a history had of head trauma and head- According evaluation, aches. to Dr. Fisher’s Paul also (alcohol history "polysubstance had a drug abuse” abuse). episodes vision, He also had several of blurred headaches, concussions, or falls.
Dr. Fisher reported "pre- that defendant’s mother sents as schizophrenic, disorganized type.” Dr. Fisher reported instability, the mother’s mental defen- dant’s adoption, injuries and his head caused defendant stress, considerable and that he "remained an immature person very who has low self-esteem.” observations, Dr. Fisher stated that in behavioral alert, the defendant cooperative, and able to perform However, most of the tasks. he "demonstrated long-term several instances of marked deficits in recall processing.” psychologist stated that this was not "surprising considering drug his extensive abuse and probable neurological damage.” Fisher Dr. stated *** retarded, psychotic the defendant was not or "but significant neurological has and diffuse impairments, probably longstanding.” chronic and
Dr. Fisher stated that dysfunction "brain evident history testing significant from the and the related to in cognition.” difficulties Dr. Fisher stated that it was professional opinion, degree reasonable *28 professional certainty, "was under extreme mental and emotional disturbance at the time capacity of the offenses and his to conform his requirements substantially conduct to the of the law was impaired.” .that he had reviewed
Dr. Fisher stated Weliczko’s sentencing at the report that was admitted into evidence hearing. opinion, report significantly In his "deviates customarily competent psycho- found in a from what logical Dr. Fisher stated that the di- report.” evaluation and that "inaccurate” was
agnosis given by Weliczko given by of the recommendations certain views.” personal Mr. Weliczko’s represent to "appear docu- opinion, in his Weliczko’s Fisher stated that Dr. the usual in accord with appear to be ment "does not and assessment competent psychological of a procedures inaccurate, and inadequate, likely to be is therefore summary: following in Dr. Fisher stated the unreliable.” currently on Death Row year white male is "This 33 old System. The results in the Illinois State Prison Status likely to be indicate that he is the current evaluation neurological a level of suffering at the current time from easily attributed to a combina- damage which can most be abuse, multiple head combined with of his substance tion findings and case records review trauma. The current test organic present been for impairment has indicate time, certainly would have period and considerable crimes were committed. present been at the time these neurological damage was exacerbated Since capacity drugs, Mr. Erickson’s to use of alcohol and/or logic, judgments, coherent and make reasonable to form appropriate and make associa- properly to connect ideas short, ability likely In impaired. been his tions was have judg- logical cognition and make reasonable to make significantly impaired as a result of the ments were sufficiently impairment was severe substance abuse. This that, my opinion, Paul Erickson was under extreme the time of the mental and emotional disturbance Furthermore, conduct capacity his to conform his offense. substantially impaired. requirements to the of the law was non-statutory mitigating factors relevant A number including present, Mr. Erickson’s mental state were also to, the above mentioned difficulties but not limited decisions, immaturity depen- making appropriate others, accep- for upon deepseated desire dence and his Considering it be obtained. tance from whomever could abuse, drug alcohol it would long duration of his unlikely significant level highly him not to have be damage.” of brain report pro- psychological
A evaluation second *29 by vided David Randall. This evaluation was substan- tially by similar to the one provided Dr. Fisher. light significant
In of the substantial evidence by cited in I post-conviction petition, his believe that defendant an evidentiary should receive hearing with respect allegation to his as- ineffective sistance of counsel. Because the instant cause involves capital punishment, this court should be especially provide ample cautious to opportunity for the defendant present in evidence his own behalf in his efforts to sentencing receive a new hearing. majority erroneously
The finds defendant has waived challenge testimony. his to Weliczko’s was the only expert defense testify support of defendant’s defense of emotional and mental disturbance. The ma- jority acknowledge fails to the trial court was never advised of the true nature al- and extent of Weliczko’s legedly perjured representations fraudulent that he a qualified professional. major- mental health ity ignores allegation also defendant’s that Weliczko learning deceived the trial court from that Weliczko did training, background, not have the or education as provider necessary give psychological mental health recog- majority evaluation of the defendant. The fails to highly were opinions by nize that offered Weliczko defendant, damaging to the and that the affidavits of support the mental health providers, submitted post-conviction petition, defendant’s indicate that defen- significant dant suffered from mental disturbance. addition, majority impermissibly In assumes the fact, weighs role of finder of the evidence submitted defendant, any opportunity the defendant and denies the mental health hearing present for a where he could allegations of ineffec- provider support witnesses to According to the affidavits of tive assistance of counsel. support health submitted professionals the mental witnesses these petition, defendant’s mental insight into valuable provide could condition, offering significant thus and emotional sen- respect to defendant’s mitigating evidence with *30 Nevertheless, grant majority refuses to tence. hearing attempt evidentiary even an peti- in his allegations raised prove I concur in this result. tion. cannot reasons, respectfully I dissent. For these dissent. joins JUSTICE HARRISON this (No. 72752. ILLINOIS, Appel-
THE PEOPLE OF THE STATE OF BANKS, lee, RANDY Appellant.
Opinion May Rehearing denied 1994. October filed 1994. notes Finally, defendant of fees for the balance note for promissory cuted Ultimately, counsel sued representation. counsel’s now theorizes note. Defendant on the collect may profile competent psychological to obtain failure costs. to incur additional to a reluctance been due have reasons, conflict contributed so, If ineffectiveness. counsel’s why as to any speculation answers The record profile a psychological seek out did not counsel are not The reasons evaluation. addition to Weliczko’s disclo by Weliczko’s suggests. Surprised as defendant cross-examination, background sure of his true hearing obtain sought a continuance counsel (See Erickson, 117 Ill. 2d evaluation. “acceptable” (see Erickson, 301.) Ill. though denied request, That