*1 (No. 105767 .
THE PEOPLE OF THE ILLINOIS, STATE OF Appel
lee, HODGES, v. RICHARD Appellant.
Opinion July 2009. filed *2 Pelletier, Michael Defender, J. State Appellate Patri- Unsinn, cia Defender, Deputy and Patrick F. Cassidy, As- sistant Appellate Defender, of the Office of the State Ap- pellate Defender, of Chicago, for appellant.
Lisa Madigan, General, Attorney of Springfield, and *3 (James Alvarez, Anita M. State’s Attorney, of Chicago E. Fitzgerald, Alan J. Spellberg Stein, and Michele Grimaldi Assistant State’s Attorneys, counsel), of for the People.
JUSTICE FREEMAN delivered the judgment of the court, with opinion.
Chief Justice Fitzgerald and Justices Kilbride and Burke concurred in the and judgment opinion.
Justice Garman concurred in and part dissented in part, with opinion, joined by Justices Thomas and Karmeier.
OPINION Following trial, a jury defendant, Richard Hodges, murder, was convicted of first degree dis- aggravated firearm, by a weapon and unlawful use of a charge of a him to sentenced County felon. The circuit court Cook appeal, appellate On direct imprisonment. 70 years’ and sentences. defendant’s convictions court affirmed Jackson, 03—3099, People 03—2233, Nos. 1— 1— (2005) under order (unpublished 1—03—3216 cons. 23).1 thereafter filed a Defendant Rule Supreme Court se pro Hear for relief under the Post-Conviction petition 2006)). (West et seq. (the Act) (725 Act ILCS ing 5/122 —1 as summarily petition court dismissed The circuit merit, appellate without and the frivolous and patently order 1—06—0902 (unpublished court affirmed. No. 23). granted under Court Rule We Supreme 2d R. 315. For the 210 Ill. appeal. for leave ap of the follow, judgment we reverse the reasons court. pellate
I. BACKGROUND shooting from a convictions stemmed Defendant’s January on 1 a.m. incident that occurred around According Side. Chicago’s station on West gas at a his trial, defendant and adduced at to the evidence Jackson, arrived Jackson and David Toniac nephews, after 1 shortly Tracker station in a black Geo gas victim, time, Christopher At about the same a.m. friends, Marquis including Pitts’s Pitts, and several of got in a red van. Pitts Scales, station gas arrived at cashier’s gas to the station’s van and walked out of the Following an Jackson. window, he saw Toniac where members of men, were the two who between argument corner around the turned and ran gang, the same Pitts building. and then behind building gas station in the Pitts, joined began chasing Toniac those of with appeal was consolidated 1Defendant’s direct Jackson, defendant’s and David Jackson codefendants Toniac *4 appeal. parties not to this nephews. codefendants are Pitts, Toniac fired a and handgun chase. 10-millimeter fired shots in Pitts’s direction a nine- with handgun. millimeter Pitts was later found dead in the station, street about a quarter-block gas from the with gunshot six wounds to the of his body. back head and No gun was recovered from Pitts’s body, and the State’s oc- currence witness testified that Pitts was unarmed. cases
Approximately cartridge were recovered from various locations at the scene. Some mil- were nine limeter, millimeter, some 10 and some .25 caliber. Seven nine-millimeter were found cases near the victim’s body, bullets, with two fired along which were determined to be nine millimeter as well. The .25-caliber cases were fired from handgun subsequently by recovered police which apparently belonged codefendant, to defendant’s David Jackson. Police did not recover a nine-millimeter or gun However, a 10-millimeter gun. the nine-millimeter cases found cartridge at the scene were all fired from the same nine-millimeter weapon, and the 10-millimeter cases were fired from the same 10-millimeter gun.
Defendant testified that he shot toward Pitts in self- defense, after seeing hearing gunfire coming from Pitts’s direction. Defendant also testified that he saw gunfire coming from the van. Defendant denied trying shoot Pitts.
Defense counsel argued self-defense and second degree murder, and the jury was instructed as to each of these defenses. The urged State jury reject self- defense and second murder, degree emphasizing Pitts was “[t]here was no weapon recovered unarmed — from Christopher Pitts” —and that the only cartridge cases recovered from the scene were of the same caliber as the used weapons by defendant and his codefendants— millimeter, nine millimeter, and .25 caliber.
The jury found defendant guilty degree of first (720 1(a)(1) (West murder 2002)), ILCS aggravated 5/9 — *5 6 (West 1.2(a)(2) (720 a firearm ILCS
discharge of 5/24 — (720 a felon 2002)), weapon by unlawful use of a and 2002)). 1.1(a) (West 20, 2003, On June ILCS 5/24 — years’ imprison- defendant to 40 circuit court sentenced conviction, an additional on the murder with ment during a firearm discharging for years personally for murder; imprisonment 10 years’ commission of the firearm, to be served consecu- discharge of a aggravated sentence; for unlawful years murder and tively to the for an concurrently; ag- use of a to be served weapon, imprisonment. of 70 gregate years’ sentence affirmed court appellate direct appeal, On Jackson, People and sentences. defendant’s convictions 03—3090, cons. 03—2233, 1—03—3216 Nos. 1— 1— (2005) Rule Court Supreme order under (unpublished 23). for leave to petition defendant’s This court denied appeal. se pro for filed a 2006 defendant January
In a motion to Act, along proceed with relief under pauperis In his postconvic- to counsel. appoint forma his trial counsel was alleged defendant that tion petition, that would evidence failing produce for ineffective Specifically, his claim of self-defense. supported have that counsel things, other among alleged, wit- three potential or interview investigate failed to defen- have corroborated testimony would nesses whose wit- that two of these alleged Defendant theory. dant’s Sanders, would have Dontay nesses, Scales and Marquis arrived they shooting, night that on the testified knew that as Pitts and in the same van station gas at the further stated Defendant gun. with a Pitts was armed named man he met about a his trial counsel that he told night station the gas at the who was Glasper Michael willing and was a gun, saw Pitts with shooting, alleged Defendant behalf. testify on claim of his have corroborated would these witnesses self-defense, that, argued and he because of counsel’s incompetence, jury get “did not a chance to hear any defendant, of this evidence.” if According to counsel had assistance, provided effective the verdict undoubtedly would have been different. alleged
Defendant also trial counsel was aware that the had police actually recovered 45 to 50 shell cas- from the ings just scene —not the 24 at trial— presented including from casings weapons of different calibers than by those used defendant and his codefendants. Defendant referred to an alleged police report signed by Detective Edward Cunningham which included this information. *6 The report was not attached to defendant’s but petition, the explained steps he took to obtain a copy. Defendant asserted that he to a in the medi- spoke person cal examiner’s office who confirmed the existence of a report indicating .22- and casings .45-caliber had been scene, recovered from the but told him he would have to file a Freedom of Information request Act to aget copy, which he did. Defendant also spoke to his counsel on direct appeal, who contacted the medical examiner’s of- fice but was told that documents could not be released without a court order or subpoena. Defendant filed a for a request court order to secure which the report, circuit court denied.
Attached to defendant’s were the signed af- fidavits of Glasper, Scales and Glasper’s Sanders. af- fidavit stated that in July he and defendant were cell mates at the Cook County jail, where Glasper was being held on a charge of first degree murder. While Glasper and defendant were discussing their cases with other, each Glasper realized that he was familiar with the circumstances of defendant’s Glasper case. stated in his affidavit that he had been near driving gas sta- tion night of the shooting and heard gunshots. He scene, drove to the saw someone lying on the ground, station, walked toward a “small gas his car in the parked pick up a a black bystander of and saw people, crowd” he agreed stated that Glasper off.” handgun “rush[ ] behalf, counsel but defense testify on defendant’s him. never contacted 1 a.m. the in his affidavit that around
Scales stated with Pitts and five he was a van night shooting Pitts and gas, van for stopped When the companions.2 to drink. buy something of the van to got two others out later, and ducked down gunshots Scales heard Minutes (Anthony friend “Ant” in his in the van as his seat Brown) they station. When gas drove the van out of the friends, their Scales pick up station to gas returned to Scales then saw ground. on the lying saw someone the area where handgun a black from pick up bystander stated that away. and walk Scales lying person saw that it was out of the van and got he and “Ant” said, just “that guy and Scales ground, on the lying Pitts Scales, ar- police gun.” According took Christ’s] minutes later.” rived “several essentially the affidavit was The content of Sanders’ stated Scales, addition. Sanders with one same as that with van, gun he took his out of the got that when Pitts always very [there’s] it was late and him “because in this area.” around something happening summarily dismissed The circuit court *7 merit, and the without frivolous and patently as petition (No. (unpublished 1—06—0902 affirmed court appellate 23)). Rule Supreme order under Court
II. ANALYSIS circuit whether dispute appeal, parties In this post- dismissed defendant’s summarily have should court witness, Wilson, testified the State’s occurrence 2James others, Pitts Scales, among in the van with were he and trial that shooting. night
9 conviction petition alleging ineffective assistance based failure, on counsel’s among things, investigate other and present testimony from witnesses who would have corroborated theory of defense. Our review of the circuit court’s dismissal of defendant’s postconvic tion petition Edwards, is de novo. v. 2d People 197 Ill. 239, (2001); People Coleman, 366, 247 v. 183 2d Ill. 388-89 (2008). (1998); Torres, 382, v. People 228 Ill. 2d 394 The Act a provides by persons method which under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their under the rights United States or Constitution the Il linois Constitution or both. See 725 ILCS et seq. 5/122—1 (West 2006). Proceedings under the Act are commenced by the of a filing petition in the circuit court in which the original proceeding took place. People Rivera, v. 198 (2001). 364, Ill. 2d 368 122—2 Section requires Act that a postconviction must, among things, other “clearly set forth the respects which petitioner’s constitutional rights were violated.” 725 ILCS 5/122—2 (West 2006). regard requirement, With this a defendant at the stage first need only a limited present amount of detail in the petition. Delton, v. People 247, 227 Ill. 2d (2008); (2008). 254 Torres, v. People 228 Ill. 2d 394 Because petitions most are drafted at this stage by defendants with little legal or knowledge training, this court views the threshold for Delton, survival as low. 227 254; Torres, Ill. 2d at fact, 2d Ill. at 394. In we have required only pro that a se defendant allege enough facts to make out a claim that is arguably constitutional for purposes of invoking Porter, the Act. See People Ill. (1988) 2d (stating “gist” of a constitu tional claim is Thus, needed at this stage). in our past decisions, when we spoken have of a “gist,” we meant only the section 122—2 pleading requirements are met, even if the petition lacks formal legal arguments or citations to legal authority.
10 low threshold at this
However, our of a recognition se is excused pro petitioner a does not mean that stage surrounding the factual detail at all providing any from 122—2 also violation. Section constitutional alleged have attached thereto shall petition “[t]he provides its al affidavits, records, supporting or other evidence not attached.” the same are why or shall state legations 2006). (West “af of the purpose 725 ILCS 5/122 —2 is to records, requirement evidence” fidavits, or other objec capable are petition’s allegations establish that a Delton, at 227 Ill. 2d corroboration. independent tive or Hall, 324, (2005), v. 2d 333 cit citing People 254, 217 Ill. (2002). “Thus, Collins, v. Ill. 2d 67 ing People 202 to set forth a se expected is not pro petition while recitation, it must set forth factual and detailed complete objective are can be corroborated and some facts which those why as to some explanation in nature or contain Delton, 2d at 254-55. 227 Ill. facts are absent.” the death involving not proceeding A postconviction Edwards, Ill. 197 stages. three distinct contains penalty (1996). 2d Gaultney, 174 Ill. People 244; 2d must, days within the circuit court stage, At the first petition, review filing, independently petition’s whether true, and determine as taking allegations merit.” or is without patently is frivolous petition “the 2.1(a)(2) 244; Edwards, 197 Ill. 2d at 725 ILCS 5/122 — (West 2006). petition If the court determines merit, the court must without patently either frivolous or order. 725 ILCS in a written petition dismiss the 5/122— 2006). 2.1(a)(2) (West does not dismiss If the court merit, then the without or patently as frivolous petition may where counsel stage, the second advances to petition (725 ILCS indigent to an be appointed 2006)) (West is allowed to the State and where 5/122 —4 (725 file dismiss or an answer to the a motion to (West 2006)).3 ILCS 5/122—5 “gist”
As we our use of the term describes explained, stage; what the defendant must at the first it is allege *9 legal by not the standard used the circuit court to evalu- Act, ate the petition, under section 122—2.1 of the which section, deals with dismissals. Under that the summary “gist” of the constitutional the alleged by claim is to be viewed within the framework of “frivolous or *** without merit” test. Section patently 122—2.1 provides, pertinent in “If the is sentenced part: petitioner and imprisonment the court determines the is petition merit, frivolous or is patently without it shall dismiss the in a petition written order ***.” 725 ILCS 5/122— (West 2.1(a)(2) 2006). Thus, Act, under a petition which is sufficient to avoid summary simply dismissal is one which is not patently frivolous or without merit.
Neither “frivolous”
“patently
nor
without merit” is
defined in the Act. This court attempted to define the
standard for avoiding
in
summary dismissal
People
Boclair,
89,
202 Ill. 2d
(2002),
101
where we cited Anders
v. California,
738,
386 U.S.
493,
18 L. Ed. 2d
87 S. Ct.
(1967),
1396
in defining
Anders,
“frivolous.” Under
“legal points arguable on their merits” are “not frivo
Anders,
lous.”
744,
386
U.S. at
3At the second
the circuit court must determine whether
petition
any accompanying
documentation make a
showing
Edwards,
substantial
of a constitutional violation.
197 Ill.
246, citing Coleman,
2d
showing
Moreover, “frivolous *10 phrase this definition of law from by case supported without merit” patently corpus, in the area of habeas which courts the federal under the Act. relief similar to that collateral provides habeas in the relied on past this court has We note See, e.g., Act. interpreting applying law in case (1992) Flores, 153 Ill. 2d v. on People 264, (relying 278-79 Zant, 517, 111 v. McCleskey 467, Ed. 2d U.S. 113 L. 499 habeas case, in (1991), defining 1454 a federal S. Ct. fil test for and prejudice” relevant terms in the “cause on Our reliance petitions). ing postconviction successive in this instance because apt particularly such case law is 122 —2.1 of section Assembly patterned General pauperis in statute, 28 U.S.C. the federal Act after forma June Assem., Proceedings, House §1915. See 83d Ill. Gen. (statements Mc 1983, Representative 21, at 93 Cracken) (“It’s this is patterned to note that important practice, consistent with that law and is after a federal 1915”). U.S.C., 28
13
note that certain federal
provisions, including
We
statute,
in
pauperis
authorize the dismissal of ac-
forma
tions
federal
seeking
corpus
habeas
relief as frivolous.
statute,
pauperis
in
which allows habeas liti-
forma
others,
gants, among
in
if
proceed
pauperis
they
forma
(see
Williams,
meet certain requirements
Neitzke v.
490
319, 324,
338, 346,
1827,
U.S.
104 L. Ed. 2d
109 S. Ct.
2.1(a)(2)
(1989)),
provides, similar to section 122—
Act,
that “the
any
court shall dismiss the case at
***
time if the court determines that
the action or appeal
***
***
is frivolous or malicious
fails to state a claim
[or]
(28
§1915(e)(2)
on
may
which relief
be granted”
U.S.C.
(2006)).
“frivolous,”
Because section 1915 did not define
the federal courts were left with the task of “[articulat-
ing
Neitzke,
proper
324-25,
[its]
contours.”
The United States Supreme Court has defined a
frivolous claim in the section 1915 context as one which
“lacks an arguable basis either in
in
Neitzke,
law or
fact.”
325,
U.S. at
interpretation applies of “frivolous” involving habeas cases frivolity dismissal for Thomp under section Koetting 1915. See (5th son, 1993) (habeas case) 995 F.2d (citing interpreta Cir. Hernandez, tion of 25, 31, “frivolous” in Denton v. 504 U.S. 118 L. *11 340, 349, 1728, Ed. (1992), 2d 112 S. quoted Ct. 1733 which Neitzke); (11th 1996) (habeas Jones, 124, Weeks v. 100 F.3d 127 Cir. case) “frivolous”). (citing interpretation Neitzke’s of finding 5“[A] appropriate factual frivolousness is when the alleged facts rise to the wholly level of the irrational or the incred- may habeas relief Moreover, seeking an action federal Rule 4 of the Rules as frivolous under be dismissed States in the United Section 2254 Cases Governing (Habeas Rules). 4, Habeas Rule as Under District Courts (see 418; 2d 174 Ill. 725 ILCS Gaultney, under the Act (West 2006)), prior dismissal occurs summary 5/122 —5 .6 from the State requiring response to Habeas Rule Note Advisory Committee states, in part: relevant answer should be suggested that an
“It has been
taking into account
every
proceeding,
required in
habeas
However,
legal
***.
expertise
lack of
petitioner’s
the usual
***
ap-
out frivolous
duty of the court to screen
it is the
placed
that would be
and eliminate the burden
plications
unnecessary answer.”
by ordering an
respondent
on the
4,
Note.
Advisory Committee
Habeas Rule
Advisory
of the relevant
adoption
A
after the
year
Court, in
Note,
Supreme
the United States
Committee
***
dismissed,
complaint may not be
pauperis
ible.
An in forma
plaintiff’s allegations
however,
the
simply
the court finds
because
might properly
disposed
allegations
be
unlikely.
improbable
Some
frivolous without
judgment,
dismiss them as
summary
but to
of on
insight
disregard
age-old
development
any
is to
factual
true;
always
is
‘strange,
for truth
allegations might be
but
many
Juan,
XIV,
canto
Stranger
Byron,
Lord
Don
strange,
than fiction.’
1977).” Denton,
(T. Steffan,
& W. Pratt eds.
E. Steffan
stanza 101
Denton,
1733-34.
6Habeas Rule judge petition to a promptly forward the must “The clerk judge procedure, and the assignment court’s under the plainly appears from the If it promptly examine it. must petitioner not any exhibits that petition and attached court, judge must in the district to relief entitled notify the the clerk and direct dismiss the dismissed, judge must petition is not petitioner. If the answer, motion, or other respondent to file an order time, other action or to take response a fixed within judge may order.”
15
Allison,
63,
Blackledge
136,
v.
431 U.S.
52 L. Ed. 2d
S.
97
(1977),
Ct. 1621
the term
in
employed
“frivolous”
describing
standard which must be met for summary
Court,
dismissal under
According
Habeas Rule 4.
to the
question”
“critical
is whether
the petition’s allega-
tions,
record,
when viewed
against
are “so ‘palpably
incredible,’
false,’
so ‘patently
[citation]
frivolous or
[cita-
as to
summary
tion]
warrant
dismissal.”
431
Blackledge,
76,
148,
U.S. at
The Second Circuit Court of
further ex
Appeals
plained the standard
summary
for
dismissal under
(2d
Habeas
Sullivan,
Rule 4. Cuadra v.
petitioner tested”).7 interpreting federal decisions
In with these keeping in the habeas corpus conclude, context, we as “frivolous” se pro relief noted, seeking postconviction that a petition dismissed as “frivolous summarily the Act be may under *** 122— to section pursuant without merit” patently or 2.1(a)(2) either if has no basis petition arguable basis arguable A which lacks an in law or fact. *13 on an is one which is based either in law or fact or a fanciful factual legal theory meritless indisputably legal meritless indisputably An of an allegation. example by contradicted completely is one which is theory Robinson, (2005) e.g., People v. 2d 43 See, 217 Ill. record. ineffective for counsel was appellate claim that (rejecting defendants, in the regard pro federal decisions 7With to se Edwards, (e.g., corpus have mirrored our concern area of habeas 244) given a pro se should be petitions filed 197 Ill. 2d at (2d Sullivan, 56, 58-59 v. 837 F.2d liberal construction. Cuadra (where 1988) se, petitioners pro “the district court ‘should are Cir. allowing eye, borderline petitions with a lenient review habeas ” 1048, Kullman, 722 F.2d proceed,’ quoting Williams v. cases to (6th (2d 82, Rose, 1983)); 84-85 Cir. Franklin v. 765 F.2d 1050 Cir. *** 1985) (“It inartfully pleaded,’ al well settled that ‘however stringent standards pro complaint held to ‘less legations in a se are ” quoting lawyers,’ Haines v. pleadings by than formal drafted 594, 552, 654, 520, 596 Kerner, 519, 2d 92 S. Ct. 30 L. Ed. 404 U.S. (“The allegations pro se (1972)); Franklin, of a F.2d at 85 765 a vague conclusory, are entitled to petition, ‘though habeas ” States, 430 F.2d construction,’ quoting v. United Burris liberal (7th 832, 1970)); 834 399, Lynaugh, v. 852 F.2d 402 Cir. Guidroz 2002) (9th (5th 742, 1988); Roe, Cir. 279 F.3d Cir. Brown law”) (“Pro occupy unique position in the petitioners a se habeas Williams, (articulating rationale cases); (collecting 722 F.2d at “If writ of habeas pro petitions: construction of se for liberal ac meaningful purpose, it must be corpus is to continue to have background strong legal or not to those with cessible counsel, also to the mass but means to retain financial uneducated, prisoners”). unrepresented on direct that out-of-court failing argue appeal hearsay, identification of defendant was inadmissible showed that the statement at issue fell where record hearsay spontaneous within the for declara- exception tions). Fanciful factual include those which allegations are fantastic or delusional. turn our attention to defendant’s in the petition
We bar, case at if the circuit correctly determine court dismissed it as frivolous and without merit. The patently question before us is had whether fact, arguable i.e., no basis either in law or in it whether was based on an indisputably legal theory meritless or a fanciful allegation. factual
In answering
question,
this
we are
guided by
standard set forth in Strickland v.
466 U.S.
Washington,
668,
80 L. Ed. 2d
(1984),
A. Factual Basis In bar, the case at we cannot that say defendant’s petition failed to set forth sufficient facts to establish a constitutional violation for of purposes the Act. invoking regard With to the requirement that the petition “clearly set forth respects in which petitioner’s constitutional rights violated,” were that alleged he was denied his sixth amendment to right effective assistance alia, inter failed, investigate to
of counsel when counsel from three witnesses who would testimony and present theory peti- defendant’s of defense. supported have and sum- each of the three witnesses tion identified Defendant al- give. would testimony they marized the witnesses, Michael one of the for that leged, example, gas at the in 2002 that he was told defendant Glasper, “actually and saw the shooting night station the alleged Defendant further weapon.” with a decease[d] conversation, this and he told his counsel of behalf, but on defendant’s testify to Glasper willing assertions petitioner[’]s even pursue counsel “didn’t summaries of similar provided to trial.” Defendant prior to testimony. According potential and Sanders’ Scales’ have Sanders would Scales and allegations, defendant’s in the same station gas arrived at they testified that Sand- gun. armed with Pitts and knew Pitts was van as testified, addition, that Pitts have allegedly ers would of the van. got he out with him when gun had his a chance get did not jury “Petitioner’s Defendant stated: evidence, counsel!”]s to trial due any hear of this strategy trial be held as and this can not incompetence, a self-defense case.” counsel stated when trial corroboration satisfied the Defendant’s also petition petition Attached to the section 122—2. requirements three wit potential affidavits of the signed were the detail, recounted, in some nesses. The affidavits offered, provid thus would have each witness testimony allegations the relevant corroboration of independent ing Delton, 252-53, Ill. 2d at petition. in defendant’s Cf. alleged where summary dismissal (affirming all investigate pos for failure was ineffective counsel any witnesses witnesses, identify failed to but sible potential what indicating any affidavits failed to submit be). would testimony witnesses’ Glasper allegations regarding While
19 might appear unlikely, allegations somewhat none of the regarding any of the three witnesses could be described Indeed, as or the allegation fantastic delusional. Scales in the night shooting was van with Pitts the supported by testimony of State’s occurrence witness, Wilson, James who also was in the van with Moreover, Pitts. a belief that are allegations unlikely, more, without is insufficient to justify dismissing peti- Denton, tion. See U.S. at L. Ed. 2d at instance, 112 S. In Ct. 1733-34. this we cannot that, conclude with to the regard allegations concerning witnesses, the three argu- defendant’s lacked an able basis in fact.
B. Basis Legal question The next is whether legal theory that counsel was ineffective for failing interview and present testimony from these witnesses itself was indisputably meritless. This question focuses on defen- dant’s theory of defense at trial and whether the three witnesses’ alleged testimony would arguably sup- have ported this theory. theory
Defendant’s of defense at trial was twofold. Counsel argued defendant fired toward Pitts self- defense, reasonably believing that his life was in danger, and defendant therefore should be of first acquitted degree murder. In alternative, argued that, counsel if defendant’s belief that his life in danger was was found unreasonable, to be the verdict should be second degree murder. Over the objection, State’s the trial court determined there was sufficient evidence to warrant instructing jury on self-defense and on second degree murder based on an actual but unreasonable belief the use of force justified. jury was instructed as to each of these defenses.
On appeal from the summary dismissal of defendant’s postconviction petition, the appellate held, court inter
alia, and Sanders had testi- Glasper, even if Scales that theory the fied, supported would not have testimony their court appellate in self-defense. The that defendant acted sup- would have testimony whether this did not address degree “unreasonable belief’ second theory a of ported murder. self-defense, the of regard theory to defendant’s
With that he that, prove in order to explained court appellate self-defense, required was defendant acting was factors, that he including evidence of several establish Morgan, v. 187 Ill. 2d People aggressor. not the See was alia, inter (1999). noted, court appellate the were to entry wounds gunshot that “all six of the order (unpublished 1—06—0902 body.” of Pitts’ No. back 23). appel to the According Rule Supreme under Court of testimony the court, if the had heard jury late even would witnesses, evidence nevertheless three the the the aggressor defendant was demonstrated that have did not act in self-defense. Pitts and against testimony that the the court agree appellate with We defen- supported not have the witnesses would of three where, This is an instance of self-defense. theory dant’s self-defense, theory legal the theory of regard to the with the investigate failing ineffective for that counsel was by contradicted completely was three witnesses record. conclusion the same
However, we do not reach murder. degree belief’ second “unreasonable regarding murder, degree instruction on second jury of the part As first to convict defendant instructed not jury of the found, by preponderance if it a murder degree killing, of the defendant, the time evidence, justify existed which would circumstances believed In was unreasonable. used, this belief he but deadly force from three testimony view, arguable it is at least our night was armed indicating Pitts witnesses theory would have a that defendant shooting supported believed, albeit that his actions were unreasonably, justifiable. noted,
As court did not address whether appellate testimony the three witnesses’ would have supported State, theory degree According of second murder. to the the appellate only reason court addressed self-defense that, and not second murder in his degree petition, focused on the the witnesses’ impact would testimony have had on self-defense. Defendant did expressly allege not that this same testimony would have murder, supported degree “unreasonable belief” second which, note, we has been referred to as self- “imperfect (People Jeffries, defense” 164 Ill. 2d 113-14 (1995)). view, defendant, In the State’s who was acting *17 se, pro “chose” to focus on self-defense and not on degree well, second murder as and he should be held to reject choice. We this argument. The State’s strict construction of defendant’s is petition inconsistent with the requirement pro petition that a se be given a liberal construction. Where acting se, defendants are pro courts should review their petitions “with a eye, lenient allow ing borderline proceed.” Williams, cases to 722 F.2d at In bar, 1050. the case at the issue of whether defendant’s pro petition, se which self-defense, focused on could be said to have included allegations regarding “unreason able belief’ i.e., second degree self- imperfect murder — defense —is at minimum the of type “borderline” ques which, tion construction, under a liberal should be answered in defendant’s favor.
Having concluded that the three witnesses’ testimony arguably would have supported defendant’s of theory murder, “unreasonable belief’ second degree we turn to whether defendant’s legal theory that counsel was inef- fective for failing to interview and present testimony from these witnesses was nevertheless meritless. We answer this question negative. view, regarded arguable
In
it must be
as at least
our
objec-
in this
“fell below an
respect
that counsel’s failure
prejudiced
of reasonableness”
and
tive standard
Strickland,
We on his prevail be able to ultimately will *18 decision on claim. Such a ineffective-assistance responsive to file the State merits, allowing to prior where, here, as inappropriate would be pleadings, allegation that counsel need not address 8We cartridge failing present evidence of additional for ineffective Act, partial summary Under allegedly found at the scene. cases postconviction stage a first of permitted at the are not dismissals Rivera, Ill. 2d at 374. proceeding. arguable defendant’s claim of a constitutional violation is Cuadra, 58; on its merits. See 837 F.2d at see also Ed (decision wards, 2d 197 Ill. at 246-47 as to whether defendant has made a “substantial of a constitu showing of inappropriate stage post- tional violation” is at first proceeding). conviction
III. CONCLUSION judgment affirming We reverse the court’s appellate summary circuit court’s dismissal of defendant’s peti- tion for relief and postconviction patently as frivolous without merit. The cause is remanded to the circuit court with directions that defendant’s for request appointment of granted counsel be and the matter be advanced to the second of stage postconviction proceedings.
Reversed and remanded with directions. GARMAN, JUSTICE in concurring part dissent- in ing part:
The central in question this case is the standard court should employ in determining whether a petition for postconviction relief is frivolous or patently without merit. I agree with the majority its analysis this standard and in its application as to defendant’s self- defense I claim. write separately to express my disagree-
ment with majority’s analysis of defendant’s second degree stated, murder claim. Simply believe, I do not case, under the facts of this that defendant is entitled to any relief and the trial court’s dismissal of his postcon- viction petition should be affirmed.
The majority
concludes,
properly
as did the appellate
below,
court
that defendant’s
self-defense
claim is
completely contradicted by the record because defendant
was the aggressor.
However,
even we take favor, himself of the sec- in his he cannot avail ences murder degree to his second tion of the statute relevant defense. murder degree the offense of first mitigate
In order to but on the basis of an actual degree to second murder a required, unreasonable belief that self-defense 2(a)(2) of section must the elements prove defendant 9— (West 2006)). 2(a)(2) (720 the Code ILCS Criminal 5/9 — 2(a)(2) part, in relevant provides, Section 9— “(a) degree the offense of second person A commits degree murder the offense of first murder when he commits *** and [***] (2) [a]t the time of the killing he believes the existed, that, they if
circumstances to be such the killing the under justify or exonerate would Code, but his in Article 7 of this principles stated 2(a)(2) is unreasonable.” 720 ILCS belief 5/9 — 2006). (West See self-defense.” “imperfect This is often referred to as (2004). Davis, 2d 213 Ill. People in this language passage critical exist that would must believe circumstances Thus, the question under article 7. the use of force justify “defendant states, whether not, the majority here is as justifi actions were believed, unreasonably, that his albeit Instead, is whether question 2d at 21. able.” 234 Ill. time, be at the believed them to facts, as defendant if killing would, or exonerate justify under article would no facts that The record contains were true. they stated principles under the killing exonerate the or “justify (West 2006). 2(a)(2) in Article 7.” 720 ILCS 5/9 — limited circumstances a number of Article 7 identifies force, deadly to use even is entitled person under which 2006). (West These include et seq. force. 720 ILCS 5/7 —1 “reasonably person force where a deadly to use right imminent necessary prevent such force is believes that another.” 720 to himself or bodily harm great death or 2006). 1(a) (West is, This apparently, ILCS section 5/7 — finding the section of code that relies on in majority that defendant’s an basis for petition presents arguable his claim. imperfect self-defense
However, section 7—1 is not to defendant applicable *20 Instead, because defendant the defendant aggressor. was may rely only by Aggres- on section “Use of Force 7— sor,” to attempt exonerate his actions. 720 ILCS 5/7 —4 (West 2006).
Section 7—4 in relevant that provides part justification for force using preceding
“described in the Sections of this Article is person not available to a who: (c) Otherwise initially * * provokes [*] the use of force against himself, unless:
(1) Such force great reasonably is so that he believes that he is in danger great bodily imminent of death or harm, and that every he has exhausted reasonable escape danger means to such other than the use of likely force which is great bodily to cause death or assailant; harm to the or
(2) good faith, In he withdraws physical from contact clearly with the assailant and indicates to the assailant that he desires to withdraw and terminate force, the use of but the assailant continues or resumes (West 2006). the use of force.” 720 ILCS 5/7—4 In present case, it is undeniable that defendant provoked whatever force he believes was used against Therefore, him. relevant question is whether one of the two statutory exceptions applies, such that is entitled to claim this defense.
Under section defendant, as the aggressor, must 7— (1) prove that he believed either that the force he was threatened imminent with was “so that he great” danger of death or great and that he harm, bodily *** “exhausted every reasonable means to escape other (2) than force”; the use of or he withdrew “from physical to Pitts that clearly indicated [Pitts]” contact with force,” “the use of to withdraw and terminate he desired use of force.” or “continue[d] resume[d] but Pitts (West 2006). added.) Defen 720 ILCS (Emphasis 5/7 —4 exceptions. of these two cannot establish either dant testimony completely and statements Defendant’s own claim.9 his murder degree contradict second his began when dispute Defendant testified (Toniac), an got argument into Durrell Jackson nephew, Pitts, a beer deceased, and threw Christopher with testified that after Defendant further bottle at Pitts.10 exited the bottle, two of Pitts’s friends Toniac threw the in and began approaching and Pitts had arrived they van Toniac. semiauto- then his nine-millimeter pulled
Defendant and fired two of his coat pocket from the handgun matic Pitts, Toniac, and Pitts’s two the heads of rounds over he fired the two shots explained friends. Defendant a fair between fight insure that there was warning as a his discharged Pitts. At the time defendant Toniac and *21 drawn, no other rounds had been guns no other weapon, kind had been fired, any weapons been no had had been made. no verbal threats and displayed, his discharging defendant violence only prior act of at Pitts. his beer bottle throwing was Toniac weapon rounds, after he fired testified that Defendant kind of scared ran, must have as “the shot everyone next to the left the area then Defendant everybody.” believed, inquiry defendant is whether 9Because the relevant that would have existed unreasonably, that circumstances albeit statute, I have of force under justified the use or exonerated of what he own statements exclusively on defendant’s focused the facts to be. believed videotaped statement trial, recanted his 10At defendant testified and instead with the bottle [Pitts]” “tried to hit Toniac of the victim” not the direction merely “threw it at Toniac without a difference. distinction him.” This is a “at standing vehicle, where he had been when he fired the up shots, and went to “check on Toniac.” Toniac had likewise left the area in front of the cashier’s window on pursued the west side of the station and had Pitts east along gas the north side of the station.
Defendant stated that when he and Toniac reached gas they stopped. station, northeast corner of the It point that, claims, at this he heard shooting past someone else and heard a bullet come him. ducking finding However, down, shelter, instead of or running cover, for defendant turned the northeast corner building began chasing along of the and Pitts south (east side) gas back of the station. trial,
At defendant testified that he and Toniac were standing together gas on the northeast corner of the sta- tion when the other shots were fired.11Defendant further only testified that after these other shots were fired did pull gun out, Toniac his and that the two of them turned together. the corner Defendant stated that Toniac fired only one round toward Pitts that this round was building. fired at the northeast corner of the Defendant any stated that Toniac did not fire other rounds and that pursuit Toniac broke off his in the middle of the east side building. Defendant, however, admits that he pursue videotaped continued In Pitts. police statement, he told that he “fired four or five chasing rounds” at Pitts while him. At trial, defendant initially testified that he fired two rounds and that merely these rounds were not fired at Pitts but “in his during However, direction.” cross-examination defendant having admitted to fired four or five rounds at Pitts while chasing him.
11This statement videotaped contradicts defendant’s state *22 ment where he stated that as he turned the northeast corner he chasing saw gun Toniac Pitts with his drawn and saw him fire two rounds over Pitts’s head. “I fired on Pitts because: testified that he
Defendant the one in at me. He was shooting he was thought however, he did, admit that of me.” Defendant front see Pitts fire a with a let alone weapon, never saw Pitts him or Toniac. weapon at to chase Pitts that he continued
Defendant testified building toward from the rear southwest his chase stopped and He Augusta. intersection of Cicero and intersection of Cicero standing he was in the when out of ammunition.12 and realized he was Augusta fall on Cicero. seeing Pitts Defendant admitted Pitts fell he assumed further testified that Defendant Pitts fall as shot, seeing denied he had been but because he fired. a result of a shot fall, Pitts he he saw stated that after
Defendant go and tried to back gas station turned back toward left the time, already Toniac had car, by but that to his car. by squad being pursued station and was gas home, back way he then made his said that Defendant his points along at various gun of of his disposing pieces path. alleges defendant petition,
In his postconviction and investigate failing was ineffective for attorney his would have who of three witnesses testimony present killed. he was gun night Pitts had a testified that killed, point Pitts was pursuing Pitts to the 12Defendant denies However, evidence Augusta on Cicero. one-quarter south of block firing only person was the that defendant produced at trial showed Moreover, question. there night in rounds on the nine-millimeter proxim casings immediate found nine-millimeter were seven State established Expert testimony for the ity body. Pitts’s station, recovered, gas at the casings both nine-millimeter all the rounds, found firing and those admits he where defendant un gun. Forensics was from the same body, were fired next to the however, weapon, as casings to defendant’s actual link the able to pieces in various weapon threw dismantled flight the scene. during of his from the course locations *23 testify seeing of these witnesses would Pitts None weapon gun sup- brandish the use the he or otherwise posedly assuming, arguendo, However, had. even that these witnesses could establish not that Pitts had a gun, actually during but that Pitts fired at defendant the flight, course of his this would be insufficient to entitle proceedings legal theory defendant to further because the degree by completely of second murder is contradicted Therefore, the record. where defendant’s own statements preclude very the defense he claims counsel was ineffec- pursuing, prejudice. tive for not there is no case, In this defendant cannot establish the first exception to section because even if the facts were 7— escape. be, as he believed them to he took no measures to pressed engagement every op- fact, In defendant the portunity. dispersed by firing crowd, Once he his weapon, joined he Toniac and chased after Pitts. When stopped gas he and Toniac at the northeast corner of the stop station, withdraw, he did not or but turned the engagement. corner and continued the When Toniac pursuit ceased Pitts, his Though defendant continued the open flight, chase. Pitts inwas defendant fleeing continued to fire at the man’s back until he was out of ammunition.
Likewise, defendant cannot establish the second exception in section because if even the facts were 7— gave any as he be, believed them to he never indication that he desired to terminate the use of force. As noted pressed every op- above, the use of force at portunity. sum,
In if even the facts were as defendant believed be, them to his use of force would not be exonerated or justifiable provided under the conditions in article 7. degree theory Therefore, defendant’s second murder completely by record, contradicted and even if performance deficient, counsel’s defendant could not prejudiced by deficiency. have been this conclusion, I the trial recognize In this reaching imperfect self- present allowed defendant court objection. over the State’s jury, instruction to the defense to err on the side of However, trial court’s decision reviewing required a court is caution does not mean that simply claim postconviction to entertain a frivolous on that instruction jury the defendant received because basis. majority held
I note that because also to warrant reversal issue was sufficient preceding *24 dismissal, argu- reach defendant’s it did not trial court’s from casings recovered that there were more shell ment trial. For the reasons were at presented the scene than As frivolous. above, argument I also find this stated that does not shooting, if were noted, people even other violence this instigated fact that defendant change the away, killing as he ran and shot at a man and chased him. on dissent partial issue with this
The takes majority that a pro the level of detail beyond it goes the basis that stage in a first to assert se required defendant would be at addressed appropriately is more and petition, 2d at 22. I 234 Ill. review. postconviction of stage second peti defendant’s sufficiency of dissent, not because compared are claims tion, when defendant’s but because are allegations that his record, it is clear to the factual meritless. indisputably a court petition, postconviction of a stage
At the first
examine
filing,
must,
days
petition’s
90
of
within
claim is frivolous.
determine whether
petition
Edwards,
Ill. 2d
v.
197
(citing People
2d at 10
234 Ill.
(West
2.1(a)(2)
(2001), and 725 ILCS
5/122 —
2006)).
the court
requires
necessarily
review
This
This
the record.
in
with
conjunction
examine the
the factual
finds that
where the court
true
particularly
must consider
therefore
fanciful and
are not
allegations
whether
the legal
“completely
by
claim is
contradicted
added.)
the record.”
Second stage review should be reserved for those cases arguable Where, here, that have merit. as record allows court of a dispose frivolous motion without further involvement of the court or the alloca- tion of resources, additional state the court should do so. case, In this argument, defendant’s entire both with regard to self-defense and with regard degree to second murder, is refuted by the record.
Therefore, I dissent respectfully part and concur *25 in part from the majority opinion would hold that the trial court properly dismissed defendant’s petition as frivolous.
JUSTICES THOMAS and KARMEIER join in this partial concurrence and partial dissent.