People v. KirkpatrickPeople v. Kirkpatrick
Justice HUTCHINSON delivered the judgment of the court, with opinion.
¶ 1 Defendant, Ryan C. Kirkpatrick, appeals the trial court‘s second-stage dismissal of his petition filed under the Post-Conviction Hearing Act (the Act) (
¶ 2 In 2006, defendant was indicted on two counts of threatening a public official (
¶ 3 On June 15, 2009, defendant filed a pro se postconviction petition alleging multiple claims, including a claim that his trial counsel was unable to provide effective assistance because the trial court and the
¶ 4 On August 13, 2010, counsel filed an amended petition for postconviction relief. Counsel alleged that (1) defendant was prejudiced by the length of time that elapsed between the time the act occurred and the time of the filing of the indictment; (2) the prosecutor failed to disclose his submission for a judgeship, which resulted in a conflict of interest involved in the prosecution of this case; (3) a prosecutor erred on the record when he stated that various other crimes could not be charged as the statute of limitations had run on the crimes; and (4) he was given insufficient access to his discovery documents to assist in his defense. Counsel also filed a “Certificate of Counsel Pursuant to Illinois Supreme Court Rule 604(d),” in which he stated that he attempted to consult with defendant, reviewed the court file and record of proceedings, and made any necessary amendments.
¶ 5 On August 24, 2010, the State filed a motion to dismiss, and on August 25, 2010, it filed an amended dismissal motion. The State argued that every issue defendant raised could have been raised on direct appeal, and therefore the issues were waived. The State also argued that dismissal would be proper because the petition failed to “clearly set forth the respects” in which his constitutional rights were violated, as required by section 122-2 of the Act (
¶ 6 On August 31, 2010, the trial court conducted a hearing on defendant‘s amended postconviction petition and the State‘s dismissal motion. At the hearing, postconviction counsel informed the trial court that he had spoken with defendant a couple of times and had written communication with him. Counsel further informed the trial court that he had reviewed defendant‘s postconviction petition and discussed with defendant the petition and changes to the petition. Following argument of the parties, the trial court granted the State‘s motion to dismiss. In doing so, the trial court found that, despite the lapse of time between the event and the indictment, the State did not violate the statute of limitations and the lapse of time did not constitute a violation of defendant‘s rights. With respect to the second issue, the trial court found it waived because defendant could have raised the issue on direct appeal. The trial court found that the third issue had no constitutional merit. With respect to the fourth issue, the trial court indicated that it followed the supreme court‘s rules concerning discovery. In granting the State‘s motion to dismiss, the trial court concluded that defendant failed to raise any issue that amounted to a constitutional violation of his rights and that he had waived many of the issues, which could have been raised on direct appeal. Defendant filed a timely notice of appeal.
¶ 8 Initially, we reject the State‘s claim that we lack jurisdiction over the appeal because the postconviction petition was not verified by a notarized affidavit. See People v. Nitz, 2011 IL App (2d) 100031, ¶ 12, 355 Ill.Dec. 525, 959 N.E.2d 1258 (determining that jurisdiction was not based upon a fully executed affidavit).
¶ 9 Turning to the merits, defendant argues that his counsel provided unreasonable assistance by failing to file a proper certificate under
¶ 10 The Act provides a method by which persons under criminal sentence can assert that their convictions were the result of a substantial denial of their rights under the United States or the Illinois Constitution or both.
¶ 11 Proceedings under the Act are commenced by the filing of a petition in the circuit court in which the original proceeding took place. People v. Hansen, 2011 IL App (2d) 081226, ¶ 18, 351 Ill.Dec. 709, 952 N.E.2d 82 (citing People v. Jones, 211 Ill.2d 140, 144, 284 Ill.Dec. 287, 809 N.E.2d 1233 (2004)). A postconviction proceeding that does not involve the death penalty consists of three stages. At the first stage, the defendant files a petition and the trial court has 90 days in which it may review the petition without the input of any party and summarily dismiss it if the court finds it frivolous or patently without merit.
¶ 12 At the second stage, counsel may be appointed for the defendant, if the defendant is indigent.
¶ 14 In the present case, the record does not establish that postconviction counsel was unfamiliar with the Act‘s requirements. Counsel is presumed to know the law. See People v. Holman, 164 Ill.2d 356, 369, 207 Ill.Dec. 467, 647 N.E.2d 960 (1995) (courts recognize a strong presumption that attorneys are competent). Although defense counsel filed a certificate with the caption that it was pursuant to
¶ 15 Defendant next contends that he did not knowingly and intelligently waive the conflict created when the trial court appointed the same attorney who represented him at trial to also represent him on his postconviction petition. Defendant argues that the trial court failed to explain the conflict, its significance, and how it could affect postconviction counsel‘s representation of him.
¶ 16 “A criminal defendant‘s sixth amendment right to effective assistance of counsel includes the right to conflict-free representation.” People v. Taylor, 237 Ill.2d 356, 374, 341 Ill.Dec. 445, 930 N.E.2d 959 (2010). “Unless a defendant waives his or her right to conflict-free representation, a per se conflict of interest is grounds for automatic reversal.” Id. at 375, 341 Ill.Dec. 445, 930 N.E.2d 959. However, a per se conflict does not exist merely because a defendant questions his attorney‘s competence during posttrial
¶ 17 In the present case, we review the underlying allegations of incompetence to determine whether an actual conflict of interest exists. See People v. Davis, 151 Ill.App.3d 435, 443, 104 Ill.Dec. 283, 502 N.E.2d 780 (1986). Defendant alleged that his trial counsel was unable to provide effective assistance because the trial court and the prison failed to allow communication with counsel and to allow access to discovery materials. Defendant does not appear to take issue with his trial counsel‘s competence but, rather, seems to express frustration with the court and the prison system. Although defendant alleged in his pro se postconviction petition that he was denied a fair trial and questioned counsel‘s effectiveness, he advanced no substantive allegations in support of the claim. See People v. Williams, 139 Ill.2d 1, 12, 150 Ill.Dec. 544, 563 N.E.2d 431 (1990) (stating that bare allegations of a conflict are not enough). To the extent there was any issue regarding defendant‘s desire to advance a claim regarding the effectiveness of his trial counsel in his amended postconviction petition, the trial court sufficiently inquired as to defendant‘s wishes for representation. We conclude that no per se conflict existed when defendant‘s trial counsel represented him during the postconviction proceedings.
¶ 18 Defendant‘s next issue concerns the sufficiency of the amended postconviction petition. Defendant argues that postconviction counsel failed to provide a reasonable level of assistance because counsel failed to amend the postconviction petition as necessary and failed to attach supporting affidavits. Defendant asserts that counsel largely copied his pro se claims, failed to cite relevant case law, failed to include legal arguments, and attached no evidence supporting the claims.
¶ 19 To proceed beyond the second stage of proceedings under the Act, a defendant must make a substantial showing of a constitutional violation. Pendleton, 223 Ill.2d at 473, 308 Ill.Dec. 434, 861 N.E.2d 999. Only upon a substantial showing of a constitutional violation is a defendant entitled to a third-stage evidentiary hearing. See People v. Spreitzer, 143 Ill.2d 210, 218, 157 Ill.Dec. 467, 572 N.E.2d 931 (1991) (a defendant is not entitled to an evidentiary hearing unless the allegations in his postconviction petition, supported by the trial record and the accompanying affidavits, make a substantial showing that his constitutional rights were violated).
¶ 20 Our supreme court has repeatedly held that postconviction counsel must perform specific duties in his or her representation as provided by
¶ 21 Defendant‘s argument that postconviction counsel failed to provide a reasonable level of assistance is unavailing. Defendant primarily relies on People v. Waldrop, 353 Ill.App.3d 244, 288 Ill.Dec. 953, 818 N.E.2d 888 (2004). In Waldrop, the defendant asserted that his postconviction counsel was unreasonable for failing
“[I]n this case, that presumption is flatly contradicted by the record. Postconviction counsel mistakenly believed that he did not have a duty to seek an affidavit from the witness specifically identified in [the] defendant‘s pro se petition.” Id.
As a result, the reviewing court concluded that postconviction counsel‘s representation fell below a reasonable level of assistance, in violation of
¶ 22 We find Waldrop distinguishable from the current matter and, therefore, unpersuasive. In Waldrop, the presumption that counsel made a concerted effort to obtain affidavits and other supporting documentation was clearly and unequivocally refuted by postconviction counsel‘s representation to the trial court that he did not believe evidentiary support was necessary. Id. at 250, 288 Ill.Dec. 953, 818 N.E.2d 888. Conversely, the record here is not so clear, and therefore the presumption that defendant‘s postconviction counsel made a concerted effort to obtain affidavits in support of the claims is not rebutted. See id.
¶ 23 Specifically, defendant‘s amended postconviction petition raised the issues of the lapse of time between the alleged offense occurring and the State bringing charges, the prosecuting attorney being nominated for a judgeship, alleged legal misrepresentations by the prosecution, and the denial of the effective assistance of counsel. In support of these allegations, defendant submitted supporting documentation. With respect to defendant‘s argument that he was denied the effective assistance of counsel because he did not have access to discovery documents, defendant‘s documentation in support of his pro se petition clearly sets forth that trial counsel filed a motion for defendant to have access to discovery, but the trial court denied that motion. Therefore, defendant‘s claim of being denied the effective assistance of counsel was based on the actions of the trial court, not trial counsel. Similarly, defendant does not identify the additional evidence that needed to be submitted with the amended petition to support his allegation that the prosecutor had a conflict of interest resulting from his candidacy for a judgeship. Finally, defendant represents in his brief before this court that postconviction counsel failed
¶ 24 In short, unlike in Waldrop, the record is devoid of a “flat contradiction” that overcomes the presumption that postconviction counsel made a concerted effort to obtain supporting documents. As a result, we reject defendant‘s contention that he was denied the reasonable assistance of postconviction counsel.
¶ 25 Last, defendant argues that his postconviction counsel failed to adequately represent him under
¶ 26 Insofar as we have already upheld the trial court‘s second-stage dismissal of defendant‘s postconviction petition on the merits, we need not seek out an alternative, procedural defect on which to substantively decide the appeal. See People v. Johnson, 208 Ill.2d 118, 129, 281 Ill.Dec. 38, 803 N.E.2d 442 (2003) (stating that a reviewing court may affirm a trial court‘s judgment on any ground appearing in the record). Moreover, our supreme court would prefer that we do not. See Petrenko, 237 Ill.2d at 505, 342 Ill.Dec. 15, 931 N.E.2d 1198 (noting that courts need not consider issues where they are not essential to the disposition of the cause or where the result will not be affected regardless of how the issues are decided).
¶ 27 We recognize People v. Carr, 407 Ill.App.3d 513, 407 Ill.App.3d 513, 348 Ill. Dec. 618, 944 N.E.2d 859 (2011), as it is a published decision from this court (this author and Justice McLaren here concurring); however, Carr does not explain why it chose to address and resolve the appeal based on a procedural defect that was not addressed by the lower court prior to appellate review. See People v. Sparks, 393 Ill.App.3d 878, 883, 332 Ill.Dec. 760, 913 N.E.2d 692 (2009) (stating that, at the dismissal stage of a postconviction proceeding, the trial court is concerned merely with determining whether the petition‘s allegations sufficiently demonstrate a constitutional infirmity that would necessitate relief under the Act). We also recognize Nitz as it is a published decision from this court; however, we believe in the instant case that the notarization and certification issues are not justiciable and need not be addressed in this appeal. Once the State moved to dismiss on the merits and did not challenge the alleged procedural defects, and once the trial court conducted a hearing, during which neither party raised the alleged procedural defects, and presented its ruling based on the merits, the purported notarization and certification issues became moot.
¶ 28 Furthermore, we believe that our resolution of the current matter is more consistent with the spirit and purpose of the Act. See People v. Taylor, 237 Ill.2d 356, 372, 341 Ill.Dec. 445, 930 N.E.2d 959 (2010) (stating that the purpose of a postconviction proceeding is to permit inquiry into constitutional issues involved in the original trial that have not been, and could not have been, adjudicated previously upon direct review). Our method of resolution also comports with our supreme court‘s long-held view that the Act in general must be “liberally construed to afford a convicted person an opportunity to present questions of deprivation of constitutional rights.” People v. Rissley, 206 Ill.2d 403, 421, 276 Ill.Dec. 821, 795 N.E.2d 174 (2003) (quoting People v. Correa, 108 Ill.2d 541, 546, 92 Ill.Dec. 496, 485 N.E.2d 307 (1985)). And finally, under the auspices of fairness, we believe that reviewing and addressing the merits of a postconviction petition provide a more just result to a person under a criminal sentence. See People v. Boclair, 202 Ill.2d 89, 101-02, 273 Ill.Dec. 560, 789 N.E.2d 734 (2002) (noting that, if a postconviction petition is untimely filed but has obvious substantive merit, i.e., if it clearly demonstrates that a prisoner suffered a deprivation of constitutional magnitude, a dutiful prosecutor should waive the procedural defect). For all of these reasons, we decline to apply the holdings of Carr and Nitz to the circumstances of the present case.
¶ 29 Accordingly, we affirm the judgment of the circuit court of McHenry County.
¶ 30 Affirmed.
Justices McLAREN and BIRKETT concurred in th