People v. JonesPeople v. Jones
The PEOPLE of the State of Illinois, Respondent-Appellee,
v.
Anthony JONES a/k/a Tonya Star, Petitioner-Appellant.
Appellate Court of Illinois, First District, Second Division.
*1075 Office of the State Appellate Defender, Michael J. Pelletier, Deputy Defender, Maria A. Harrigan, Assistant Appellate Defender, Chicago, for Appellant.
Richard A. Devine, Cook County State's Attorney (Renee Goldfarb, William D. Carroll, Alan J. Spellberg, Kathleen Bom Lang, Assistant State's Attorneys, of counsel), Chicago, for Appellee.
Justice McBRIDE delivered the opinion of the court:
In April of 1987, petitioner Anthony Jones was found guilty by a jury of the murder of his 93-year-old great-grandmother Estella Small and the aggravated battery of Ms. Small's 61-year-old caregiver, Dorothy Hill. Jones was sentenced to an extended term of 80 years' imprisonment for the murder and a concurrent term of 5 years for the aggravated battery. These judgments were affirmed on direct appeal by this court in an unpublished order. People v. Jones,
Since that order was entered Jones has sought post conviction relief on more than one occasion pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)).
Two of Jones' post conviction challenges have been unsuccessful on appeal to this court, People v. Jones, No. 1-95-0207,
The current appeal stems from the dismissal of what Jones and the respondent *1076 (State) both agree is Jones' sixth post conviction petition. The subject petition, dated January 7, 1997, was filed on January 29, 1997. On January 31, 1997, the trial judge dismissed the petition on grounds that the circuit court lacked jurisdiction because one of petitioner's previous post conviction petitions was still pending on appeal at the time of the filing of the instant petition.
Neither Jones nor the State has specifically addressed the grounds upon which the trial judge dismissed the petition. Instead both have proceeded under the theory that the petition was dismissed without an evidentiary hearing because it failed to allege the gist of a constitutional claim.
As noted earlier, the current petition represents Jones' sixth effort at post conviction relief. The pro se petition alleges that numerous errors occurred during Jones' trial. Jones also filed a memorandum of law in support of his claims. We will discuss only those claims that are raised by Jones in this appeal. People v. Coleman,
Jones contends that the trial court improperly dismissed the petition without an evidentiary hearing. He argues that although his petition was untimely, and successive, fundamental fairness requires an evidentiary hearing and appointment of counsel on this sixth petition because it stated the gist of a substantial constitutional claim. More specifically, Jones claims that the trial court violated his constitutional rights when it failed to conduct a fitness hearing based upon his alleged ingestion of the psychotropic drug Haldol at or near the time of his trial and sentencing. Jones also claims his appointed post conviction counsel was ineffective because the attorney never amended a previous petition to include the issue of fitness to stand trial based upon his ingestion of psychotropic medications. Thus, Jones claims he was entitled to an evidentiary hearing. For this proposition he relies primarily on People v. Neal,
The State cites numerous reasons for affirming the dismissal of the sixth petition, but does not discuss the reason given by the trial judge as the basis for the dismissal. The State argues that the sixth petition is untimely and that Jones has not alleged facts demonstrating his lack of culpable negligence. Citing People v. Whitehead,
*1077 We agree with the State that Jones' claims are barred because the petition is untimely, that the fitness issue raised in this sixth petition is barred by principles of waiver and res judicata, that Jones' claim he was taking psychotropic drugs at the time of his trial and sentencing is not supported by the record, and that fundamental fairness would not suggest a relaxation of those rules in this particular case so as to permit consideration of any of Jones' claims. People v. Flores,
In a series of decisions beginning with People v. Mitchell,
"Due process does not require that everyone taking `psychotropic or other medication' under medical direction should be granted a fitness hearing. Section 104-21(a)'s provision is merely a statutory right granted by the legislature-a right that the legislature has now taken away. See 725 ILCS 5/104-21(a) (West 1998). Statutes do not confer constitutional rights, and the allegation of a deprivation of a statutory right is not a proper claim under the [Post Conviction Hearing] Act." Mitchell,189 Ill.2d at 329 ,245 Ill.Dec. 1 ,727 N.E.2d 254 .
In People v. Jones,
In a subsequent case also entitled People v. Jones,
Accordingly, we find Jones has failed to present a constitutional-deprivation claim based upon his allegation that he did not receive a fitness hearing at the time of his trial and sentencing. Although the failure to allege a constitutional deprivation was not the reason the trial court dismissed Jones' most recent petition, we may sustain the order on appeal for reasons other than those given by the trial court. People v. Lieberman,
Jones next claims that he raised the gist of a constitutional claim because post conviction counsel failed to amend one of Jones' previous post conviction petitions to include the allegations of unfitness due to the ingestion of psychotropic medication at or near the time of trial and sentencing. Although Jones concedes he is only entitled *1078 to a reasonable level of assistance of counsel at post conviction proceedings, he contends that his post conviction counsel's failure to amend the petition to allege unfitness was less than a reasonable level of representation and therefore created a constitutional claim. We disagree and find that Jones has failed to allege a constitutional deprivation on this question as well. Allegations by a petitioner of the failure of post conviction counsel to provide reasonable assistance at a prior post conviction proceeding do not present a constitutional basis upon which relief can be granted under the Post-Conviction Hearing Act. See Flores,
"The Act, does not, however, provide a forum to test the propriety of conduct at an earlier post conviction proceeding. Thus, where a petitioner files a second or subsequent post conviction petition wherein he claims ineffective assistance in his first post conviction proceeding, consideration of those claims is beyond the scope of the Act." Flores,153 Ill.2d at 277 ,180 Ill.Dec. 1 ,606 N.E.2d 1078 .
Therefore, we hold that Jones has failed to allege the gist of a constitutional claim by the allegation that his post conviction counsel was ineffective or, more precisely, did not provide the requisite reasonable level of assistance by failing to amend a previous petition to include the allegation of unfitness due to the ingestion of psychotropic drugs at or near the time of the trial and sentencing. Moreover, because such allegations did not occur in the proceedings which resulted in Jones' conviction, they are beyond the scope of the Act. Flores,
Jones also asks the court to allow the appointment of counsel on his "untimely" and "successor" petition, on grounds of fundamental fairness. Before considering the fundamental fairness question, we point out that this is by Jones' own admission his sixth post conviction petition and that the Post Conviction Hearing Act contemplates the filing of only one petition. Flores,
Section 122-3 of the Act provides that "[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived." 725 ILCS 5/122-3 (West 1998). "Furthermore, a ruling on an initial post conviction petition has res judicata effect with respect to all claims that were raised or could have been raised in the initial petition. [Citations.] As a consequence, a defendant faces a daunting procedural hurdle when bringing a successive post conviction petition." Jones,
As the Flores court noted:
"The filing of successive post conviction petitions sets up two competing interests. On the one hand, there is the State's interest in providing a forum for the vindication of petitioner's constitutional rights. On the other hand, the State has a legitimate interest in the finality of criminal litigation and judgments. `Without finality, the criminal *1079 law is deprived of much of its deterrent effect.' (Teague v. Lane (1989),489 U.S. 288 , 309,109 S.Ct. 1060 , 1074,103 L.Ed.2d 334 , 355.)" Flores,153 Ill.2d at 274 ,180 Ill.Dec. 1 ,606 N.E.2d at 1083 .
Although the procedural bars of waiver and res judicata generally contribute to the finality of criminal litigation, where fundamental fairness so requires, strict application of these procedural laws has been relaxed. Flores,
Moreover, because post conviction relief extends only to deprivations of constitutional rights that occurred at the proceedings which resulted in Jones' conviction and because Jones has not raised any constitutional claim in his latest post conviction petition, he cannot show that any of the previous post conviction proceedings were deficient in some fundamental way. Accordingly, we hold that Jones is procedurally barred from bringing this petition on the fitness issue and the question of post conviction counsel's failure to amend a previous petition.
While this appeal was pending the United States Supreme Court decided Apprendi v. New Jersey,
The United States Supreme Court in Apprendi held that "`under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.'" Apprendi,
Jones contends that Apprendi renders his 80-year extended-term sentence unconstitutional. In response the State argues that Jones' sentence is not unconstitutional under Apprendi and that Apprendi does not apply retroactively to cases on review from the dismissal of a post conviction petition.
Since the Apprendi decision was handed down several divisions of the First District have considered whether Apprendi applies retroactively to cases on collateral review. The third division of the First District in People v. Beachem,
In Flowers, our supreme court determined the circumstances in which new constitutional rules could be retroactively *1080 applied to cases on collateral review. Pointing out that petitions filed under our Post-Conviction Hearing Act are similar to habeas corpus proceedings, the court looked at Teague v. Lane,
The question at issue in Flowers was whether the court's decision in People v. Reddick,
Kizer reviewed the holding in Flowers while pointing out how narrowly our supreme court has interpreted the exceptions to the Teague decision. The Kizer court then concluded that Apprendi does not retroactively apply to the review of post conviction petitions. Kizer,
The Beachem court, in reaching a conclusion opposite to Kizer, distinguished Flowers in the following way:
"In Flowers, the Illinois Supreme Court held People v. Reddick,123 Ill.2d 184 [122 Ill.Dec. 1 ],526 N.E.2d 141 (1988), did not apply to cases on collateral review. The Reddick court had found unconstitutional jury instructions which erroneously stated the burden of proof for voluntary manslaughter mitigating mental states. The Flowers court recognized Reddick involved a `grave' jury instruction error `of constitutional dimension' (Flowers,138 Ill.2d at 236-37 [149 Ill.Dec. 304 ,561 N.E.2d 674 ]), but declined to place a Reddick error within Teague's second exception: `This exception must be narrowly construed and we do not believe that the Reddick rule established such a component of basic due process so as to fall within it.' Flowers,138 Ill.2d at 242 [149 Ill.Dec. 304 ,561 N.E.2d 674 ].
Reddick discussed the constitutional obligation of the jury to follow the trial judge's instructions (see People v. Jenkins,69 Ill.2d 61 , 66-67 [12 Ill.Dec. 728 ],370 N.E.2d 532 (1977)), but, unlike * * * Apprendi, it did not implicate the right to a jury verdict beyond a reasonable doubt and, consequently, the fundamental fairness and accuracy concerns inherent in the second Teague exception.
Apprendi tells us we deal with `constitutional protections of surpassing importance.' Apprendi,530 U.S. at 475-77 ,120 S.Ct. at 2355 ,147 L.Ed.2d at 447 . The reasonable doubt standard `reflect[s] a profound judgment about the way in which law should be enforced and justice administered.' Apprendi, 530 *1081 U.S. at 477-78,120 S.Ct. at 2356 ,147 L.Ed.2d at 447-48 , quoting [In re Winship,397 U.S. 358 , 361-62,90 S.Ct. 1068 , 1071,25 L.Ed.2d 368 , 374 (1970).] Our jury tradition is `an indispensable part of our criminal justice system.' Apprendi,530 U.S. at 495-97 ,120 S.Ct. at 2366 ,147 L.Ed.2d at 459 . How, then, could we say we do not deal with procedures that are implicit in the concept of ordered liberty? Have we not reached `bedrock'?" Beachem,317 Ill.App.3d at 704-06 ,251 Ill.Dec. 308 ,740 N.E.2d 389 .
Relying on Kizer, we recently held in People v. Scullark, No. 1-99-1722, slip op. at 29, ___ Ill.App.3d ___, ___, ___ Ill. Dec. ___, ___ N.E.2d ___,
Accordingly, the judgment of the trial court dismissing Jones' post conviction is affirmed.
Affirmed.
McNULTY, P.J., and COUSINS, J., concur.