*1 baggie cocaine, is contained substance support defendant’s conviction. sufficient
CONCLUSION apple spoils adage the lot” does that “one bad specific flaws relation between sometimes describe testimony credibility In whole. a witness’ requires from the inference doubts cases, the record some parts testimony In the whole. to doubt about about adage apply however, the does not because cases, other part require the the record does not inference category.Despite falls into the latter whole. This case testimony parts doubts some of Pfest’s discussed about directly support above, the defendant’s statements reasonably possession conviction of the cocaine could accepted by testify, finder, the fact who saw Pfest beyond judgment ap- a reasonable doubt. The true judgment pellate reversed, therefore and the court is the circuit court is affirmed. reversed; court judgment
Appellate court judgment circuit affirmed. (No. 95802. Appel OF ILLINOIS,
THE PEOPLE OF THE STATE Appellant. lee, v. LAWTON, GARY Opinion 2004. October filed *2 Sterling, appellant. Leonard, Mt. for John B. Madigan, Attorney Springfield, General, and Lisa (Gary Attorney, McCartney, State’s of Pittsfield Frank General, D. Feinerman, and Linda Solicitor Woloshin Attorneys Jay Hoffmann, General, of Paul Assistant counsel), Chicago, People. opinion
JUSTICE RARICKdelivered court: sexually dangerous Gary *3 declared a Lawton was custody Department person the and committed to the of Sexually Dangerous pursuant to the of Corrections (West (725 2002)). seq. He et Persons Act ILCS 205/0.01 County subsequently petitioned the court of Pike circuit judgment pursuant to section relief from that to obtain (735 ILCS the of Civil Procedure of Code 5/2— (West 2002)). petition, grounds As for his Lawson argued, among things, the that he had been denied other Following hearing, a the of effective assistance counsel. granted petition. appellate circuit court Lawton’s App. granted Law- court 3d 1085. We reversed. 315(a). petition appeal. III. to 2d R. ton’s for leave appellate follow, the we now affirm the For reasons judgment. court’s giving events rise to this appeal began in Febru- of
ary 1998, when Lawton charged was separate in cases (see predatory with criminal a sexual assault of child (West 14.1(a)(1) 2002)) ILCS allegedly molest- 5/12 — ing two four-year-old girls at his church. Following preliminary hearings following month, conducted the trial court found probable cause believe that Lawton had committed those offenses.
Lawton, through counsel, subsequently filed a series motions, of pretrial including discovery, motions for a bill particulars, of suppression evidence, of and determina of tion of competency testify. witnesses to While those motions pending, were the State proceed initiated civil ings against Lawton under Sexually Dangerous permits Persons Act. That statute the State to seek an involuntary, commitment lieu a indeterminate prosecution criminal charged when a defendant criminal offense sexually and is believed dangerous. People Burns, “Sexually dangerous persons” by are defined as law persons suffering disorder,
“[a]ll from a mental which mental disorder period has existed for a of not than less year, immediately one prior filing petition for, provided hereinafter coupled propensi- with criminal offenses, ties to the commission sex and who have propensities demonstrated toward acts of or sexual assault acts of sexual molestation children ***.” 725 ILCS 205/ (West 2002). 1.01
Where, here, petitions the State to have a person sexually trial dangerous, declared court must appoint psychiatrists to person. two examine that ILCS 205/4 (West 2002). us, In the case appointed before the court Lawton, Dr. Phillip Joseph Bornstein and Dr. Bohlen. turn, psychiatrist, Henry Lahmeyer. retained his Dr. own Lawton waived his right have matter heard and a trial on the jury, peti- bench State’s commitment tion followed.
During the State. testified for trial, Dr. Bornstein any from did not suffer that Lawton Dr. Bornstein stated diagnosed major “a psychological him with illness, but specified” first personality otherwise which disorder years appeared Dr. Bornstein old. when Lawton was explained all the traits did not exhibit that, Lawton while significant display any antisocial, disorder, he did one characterize narcissistic, traits which and histrionic personality in the as described B” disorders “Cluster Diagnostic of Mental Disorders. and Statistical Manual According are Bornstein, B disorders Dr. Cluster aggression and assault. with sexual consistent upon diagnosis was based of Dr. Bornstein’s Much given by questioned responses Bornstein Lawton when sexually abusing regarding in 1987 for him his conviction underlying stepdaughter. that conviction The abuse his escalating years, mere extended over several girl fondling the time when the was 9 intercourse 15. Dr. found that Lawton minimized she was Bornstein simply describing abuse, of the it consensual the extent girl a sex when the was teen. Dr. Bornstein stated subsequent conduct and rationalizations Lawton’s his degree empathy selfishness, as a lack of and a showed high deception, untruthfulness, well as levels acknowledged Dr. that the trial court denial. Bornstein ultimately the defendant would decide whether was sexually dangerous person, opined that Lawton fit but statutory sexually dangerous person. definition of a really position. I Dr. Bornstein then clarified his “What say,” testified, the criteria for Bornstein “is he meets psychiatric having disorder is associated with which propensity offenses.” commit sexual testified The State next called Dr. Bohlen. Dr. Bohlen ap- diagnosed pedophilia, which that he Lawton with years stepdaughter peared his nine earlier when was opinion partially upon years Law- This was old. based *5 prolonged stepdaughter ton’s sexual abuse of his partially upon currently the fact that Lawton availed opportunities young himself of to be around children at baby-sitting According home while and at church. to Dr. young Bohlen, Lawton was evasive about his contact with church, children at and he minimized and rationalized he contact had with these children. Dr. Bohlen initially being that observed Lawton denied involved any previous of incidents sexual abuse of children and pertaining stepdaugh- admitted the 1987conviction his only ter Dr. after Bohlen him he advised that knew about then, the case. Even Lawton described the sexual abuse stepdaughter of his aas on-time occurrence. reports
Dr. Bohlen stated that he had examined the pending charges highly of the and found them credible. specific imparted by information the children “would impossible up.” for them to dream Dr. Bohlen statutory concluded that fit the Lawton definition of a sexually dangerous person. testified,
After Bohlen the State asked circuit judicial court to take notice of Lawton’s 1987 conviction sexually abusing stepdaughter for his and of the two charges predatory more recent of sexual criminal assault precipitated proceedings of children which then response request, before the court. In to the Law- State’s attorney provides [the ton’s that conceded “the law court] purposes hearing previous can consider for previous respect acts, convictions, so with to the Court taking judicial any objection.” notice that I don’t have objection specified He then that he had no to the court reading charges, guilty plea, judgment ap- conviction, sentence, did think and the but not it propriate for court examine facts that case. attorney quibble” Lawton’s further stated he “can’t charges pending taking with the court notice of the against predatory his client for criminal sexual assault. granted to take the State’s motion circuit court began presentation judicial of his notice. Lawton then by calling Lahmeyer. Dr. Lah- a Dr. as witness defense meyer diagnosis forcefully disputed aof Dr. Bornstein’s According specified. personality otherwise not disorder diagnosis [not you get Lahmeyer, like NOS “if into Dr. percent approximately specified], of the otherwise qualify people that; that has so in this room would validity Dr. no usefulness.” and almost clinical the lowest Lahmeyer he the clinical interview
stated that neither sup- performed on Lawton nor the tests he conducted According diagnosis personality ported disorder. of a Lahmeyer, “[t]here he shred of evidence that one any type.” suffering personality [a] disorder *6 from simply suffering Lahmeyer opined Dr. that Lawton was adjustment mixed emotional from an disorder with quite anger “quite depression, features, a of a lot of lot resulting suspiciousness,” his on from arrest and some subsequent underlying charges confine- and home the adjustment Lahmeyer disorder ment. believed Lawton’s dissipate when this case was resolved. would Lahmeyer’s previously view, had not In Dr. Lawton any and did not meet suffered from other mental disorder stepdaugh- pedophilia. his the criteria for His assaults on He no offense ter were mere incest. had sex convictions following stepdaughter, years his he in the his abuse of marriage, in a house has a and he has lived with stable Lahmeyer Dr. female minors without incident. several displayed amazing “an level of social felt that functioning” pedophilia. Lahmeyer Dr. inconsistent with allegations veracity questioned of the current also the against fit the concluded that he did not Lawton and sexually dangerous person. statutory a definition of testimony, Lahmeyer’s Following Lawton also Dr. testimony parents presented Law- from three whom baby-sat. parents indicated that his Those ton and wife they had frequently left their children with Lawton and wife, his that had they spoken with their regard- children ing whether Lawton had ever done of a anything sexual nature them, they and that would still trust Lawton baby-sit their children without additional adult supervision. presented,
Based the evidence the trial court determined that Dr. diagnosis Bohlen’s of pedophilia was not supported. found, The court however that Lawton disorder, suffered from a by mental as described Dr. Born- stein; 1987; that the had disorder existed since at least and that the coupled disorder was with criminal propensi- ties to commit sex Based on findings, offenses. those court sexually declared Lawton to dangerous person and committed him to the custody Department Corrections. appealed. appeal brought
Lawton was by the attorney represented same who had him in the trial court. attorney The sole claim advanced was that had State failed adduce sufficient evidence to prove Lawton suffered a mental disorder.
The appellate rejected court that claim. It concluded testimony sup Dr. Bornstein and Bohlen Dr. ported finding the trial court’s that Lawton had mental Noting disorder. that Lawton had disputed “basi cally presence statutory concede[d] the other ele ments required support ruling,” trial court’s appellate Lawton, court affirmed. People v. 305 Ill. App. *7 (1999) (unpublished 3d 1123 order under Supreme Court 23). Rule Lawton subsequently petitioned this court for appeal. petition leave to His was denied. People Law ton, year, a following petition Lawton filed in the County
circuit court of Pike under section 2—1401 of the obtain relief the judg- Code Civil Procedure to ment him the against foregoing entered in case. Lawton attorney initially, pro proceeded later retained but se petition on his an amended section who filed behalf. lawyer, than the one was different
Lawton’s new who appeal, represented and on direct him at trial who had attorney previous argued, had alia, that Lawton’s inter Specifi- provide effective assistance. failed to him with lawyer prior cally, that Lawton’s contended the new failing properly chal- to counsel had been ineffective Attorney by allegedly lenge made State’s assertions beyond proof accepted by a court “that the trial any proof required trial, was not doubt, or at reasonable propensities’ respect element ‘demonstrated with cause of action.” State’s petition, argu- moved to dismiss Lawton’s State including ing Lawton, his claim that the issues raised counsel, could be raised of ineffective assistance brought proceedings 2—1401. The trial under section stating: motion, court denied gist is of a meritorious defense “I think there a sufficient argument [for the petition ***. The best set forth in the past has probably that under 1401 nowhere in State] ineffective counsel. allowed the Court address section however, says, if found a case that has Court Nowhere sexually dangerous a petition it is a 1401 that addresses right person [ ]effec- a to ask for person case is denied the *** arguments I agree [defense counsel]’s tive counsel. issue, petition post to this that a conviction [sic] as it relates *** appropriate. Act is not under the Post Conviction Relief *** address ineffec- appropriate place That be the would of case available in this kind a tive counsel. Since that’s not liberty by case does involve the loss because this ‘civil housing his for treatment under these defendant I am making then I am new law but proceedings,’ perhaps Lawton, case, Mr. determining that defendant in this right ineffective counsel have the to raise issue of does petition ***.” in this section 2—1401 Nearly year motion dismiss was after the State’s hearing court ad- denied, at which the was convened *8 petition. dressed the merits of Lawton’s section 2—1401 initially statutory The court reviewed the elements of the sexually dangerous person. definition of a It then turned opined to the record in this case. The court that the State prove propensities through could not demonstrated needed, conviction.More was and more should have attorney. been demanded view, Lawton’s In the court’s attorney aggressively argue however, the “did not nor present propensi- evidence the issue of demonstrated ties.” Based considerations, on these the court concluded that *** previous attorney
“Mr. Lawton’s not provide did him counsel, with effective did he not contest the issue at propensities, trial of demonstrated there was insuf- ficient evidence of propensities demonstrated that was presented by competent evidence before this trial Court ***. *** I find that ineffective of counsel existed in assistance object the area of his or provide failure to contest or to involving counsel propensities.” issue demonstrated The court also held that Lawton would not have been sexually dangerous person found to be a if trial at- his torney had “taken issue with the element of demon- propensities.” granted strated The court therefore Law- petition, ton’s terminated his commitment to the Department Corrections, and ordered that he be held County jail pending proceedings. in the Pike further appellate holding reversed, The court that Lawton’s petition granted. App. should not have been 335 111. proceedings 1085. court first stated that sec- under appropriate tion 2—1401 are not an forum for defen- regarding competency dant to raise claims of counsel. reject The court then went on to defendant’s ineffective- assistance claim on As the merits. noted earlier opinion, subsequently granted petition we for Lawton’s appeal appellate judgment. leave to from the court’s matter is now before us review. undertaking review,
In our whether we consider first utilize section for Lawton to permissible it was challenge compe- of Civil Procedure of the Code him in the represented who attorney tence of Persons Act. Sexually Dangerous under proceedings it court, we that was. to the believe Contrary appellate Sexually Dangerous Persons Proceedings under the *9 may, however, result in They Act are civil in nature. peniten in the liberty and incarceration deprivation reason, defen For that tiary psychiatric for treatment. the same es the Act must be accorded subject dants to a criminal defendants in sential available to protections (2001). Trainor, v. 328 prosecution. People trial, to right right to a They speedy have the testifying against confront cross-examine witnesses Trainor, them, right against and the self-incrimination. They to represented Ill. 2d at are also entitled be 329. (West 2002). 725 ILCS by counsel. 205/5 right proceedings A defendant’s to counsel in under itself, it is only the Act not is conferred the statute v. by the United Constitution. See required People States (1994). Implicit Ill. 3d Bailey, App. right to counsel is the to assistance counsel right has received effec who is effective. Whether defendant judged according is to the same tive assistance of counsel criminal Bailey, App. See 265 Ill. standards used in cases. 294, 300 763; People Dinwiddie, App. 3d at v. 306 Ill. 3d (1999). no to of counsel has right effective assistance it. a defendant has some means to assert
meaning unless Sexually in a under the proceeding Where defendant ef Act contends that he was denied Dangerous Persons trial, may that is fective of counsel at he raise assistance judgment. appeal sue on direct from the circuit court’s (2001). See, Johnson, Ill. e.g., People App. 3d 117 represent on to goes the defendant’s trial counsel When however, likely avenue is to be appeal, him on An attorney foreclosed. cannot expected his argue own ineffectiveness. is why, That trial example, counsel’s failure to assert his representa own ineffective tion a posttrial motion does not ap waive the issue on Parker, People peal. See App.
That is the problem facing in the Lawton case before indicated, us here. As we lawyer have whose actions in the trial court are the basis for Lawton’s claim of inef- fective assistance lawyer counsel the same who handled appeal Lawton’s on direct To review. advance argument Lawton’s that he had mishandled the trial would proceedings have required lawyer argue his incompetence own To appeal. avoid the criticism that incompetent he was would required compro- have that he obligation mise his as an attorney represent Lawton zealously. lawyer thus faced an inherent conflict of interest. seeking
Defendants challenge effectiveness representation they during received their criminal *10 trials avoiding problem. have mechanism for If their trial to represent counsel continues them on direct review and does not raise the issue of the of effectiveness representation the he provided, notions of waiver will yield to considerations of fundamental fairness and defendants will still be to permitted challenge trial through counsel’s effectiveness under the proceedings (725 seq. et Hearing Post-Conviction Act ILCS 5/122 —1 (West 2002)). v. People Mahaffey, 165 445, See Ill. 2d (1995). 458-59 liberty the of to subject
Because interests those involuntary commitment Sexually Dangerous under the significant persons Persons Act are no less than of those facing conduct, the incarceration for criminal same principles of fundamental fairness dictate that we provide them claims of comparable recourse where their
297
because
went unheard
assistance of counsel
ineffective
lawyers
represented
at
handled
them trial
who
the same
appeals.
problem
defendants
is that such
direct
their
Hearing Act. The
invoke the Post-Conviction
cannot
only
persons
Hearing
applies
Act
Post-Conviction
imprisoned
pursuant
conviction. Proceed
to a criminal
Dangerous
ings
Sexually
civil
Persons Act are
under
(1970).
Lindsey,
People
in nature.
remedy
be found.
therefore
other
must
Some
of
2—1401 of the Code
lies in section
solution
defining
relief available under
In
Civil Procedure.
Assembly
statute,
used the broadest
the General
possible
it
vari-
The statute states that
abolishes
terms.
legal
equitable,
writs,
and that
ous enumerated
grounds
for such
“[a]ll relief heretofore obtainable and
available,
any
foregoing
of the
heretofore
whether
relief
every case, by
otherwise,
available in
or
shall be
remedies
1401(a) (West
***.” 735
proceedings hereunder
ILCS 5/2 —
2002).
guiding principles in
One
the administration
petition
section 2—1401 relief is that
invokes
prevent
equitable powers of the circuit court to
enforce
judgment
doing
unfair,
ment of a
so would be
when
unjust,
Airoom,Inc.,
or unconscionable. See Smith
(1986).
ordinarily
Although
Ill. 2d
statute
nothing
language
fact,
to correct errors of
used
applicability matters.
its
such
section
limits
recognized
Accordingly,
law has
that its functions
case
Chrysler Corp.,
beyond
Ill.
that. See Strader v.
extend
App.
court has held that
3d
Our own
may
petitions
chal
also be used to
filed under the statute
legal
lengejudgments
defective for
reasons.
claimed be
Chicago
Education,
Sarkissian v.
Board
See
(2002) (Chicago
of Education allowed to use
Board
prior
petition
challenge
judgment
section 2—1401
against
*11
grounds
it
the manner in which
it on the
statutory require-
comply
did
had been served
(2001) (criminal
v.
merits);
People Harvey,
In barring use of section 2—1401 by
such
individuals
as the defendant
in
case,
the appellate court cited
Anderson,
v.
People
(1964),
Ill.
Putnam v.
2d
v.
(1951),
People,
People
Our in People Pinkonsly, opinions recent People Haynes, (2003), and 2d (2000), 192 Ill. with Anderson, Putnam, distinguishable. are likewise As Hall, Sheppard, Pinkonsly and in decisions Haynes both involved criminal who at defendants were bring challenges collateral their tempting criminal Those defendants had convictions. recourse under Hearing Post-Conviction Act. The defendant this case Haynes distinguishable does not. is further present Haynes case because the defendant did not at tempt raise ineffective of counsel claim assistance in a section 2—1401 petition. peti The section 2—1401 Haynes sought at tion issue in to vacate the defendant’s newly and death convictions sentence based discovered evidence.
Relief granted should be under section when necessary justice. accomplish goal, to achieve To Marriage See In re liberally. statute is to construed Hoppe, App. 282-83 appellate *12 holding opposite approach. section In that the court took permit defendant’s, it such as not actions 2—1401 does language imposed of the statute the restrictions that purposes of statute the and that the does not include accommodate. cannot highest justice
Doing the is this court’s under law obligation. Through 1401, the As- General section 2— sembly provided and effective has us with a versatile justice pursuing as this. For in cases such means of opinion, Law- later in this reasons that will be discussed That Lawton’s own not meritorious. ton’s claims are however, not, deter us lack merit should claims recognizing allowing propriety other defendants the Dangerous subject Sexually utilize Act to to Persons to of ineffective assistance assert claims section Sexually Involuntary commitments under of counsel. occurring Dangerous are increased Act Persons frequency. grows, the the number of such cases As raising of ineffective as- mechanisms available for claims heightened importance. sistance of counsel will take on may this constitutional claims lack While defendant’s It claims. merit, other defendants will have valid highest us, court, to insure as this state’s incumbent in do fall to such claims not victim uncertainties pursue to their claims. law.Defendants need to know how guidance to handle them. The Trial courts need in how zealously. litigated matter defendant this case has sufficiently us to issues have been framed enable circumstances, make a reasoned decision. Under these justification deferring is- there is no resolution sue. general concerned rule, we must be about
As guarded finality judgments. must also be need for We party when and under what circumstances about judg- permitted challenge an otherwise valid should be negligence. attorney’s If were a ment on his based conventional case litigant civil in which a sought col- laterally attack a judgment grounds on the that his lawyer was negligent, question there would be no relief would lie under section 2—1401. But this is not a proceeding such a case. It is under the Sexually Danger- ous Persons Act which the defendant has a constitu- right tional to effective assistance of counsel. right
To extent that the guaranteed counsel is by States, the Constitution of the United its enforcement explicit need not more await authorization Assembly. General The reason is obvious. If implementa- tion of federal guarantees dependent constitutional were *13 by legislatures, action state states would have the power prevent to from asserting citizens their federal rights constitutional in simply sitting state courts by system back and Under doing nothing. govern- our of ment, may such a is impermissible. result Illinois choose procedure the it deems the appropriate for vindication of 235, 238, rights. Young Ragen, federal v. 337 U.S. 93 L. (1949). 1333, 1336, 1073, not, Ed. 69 may S. Ct. It however, entirely shut its doors to federal constitutional claims. The clause of the United States supremacy (U.S. 2) Const., VI, Constitution art. requires cl. state judges courts enforce federal law and state court to be the by Supreme bound it. As United held States Court century more than a ago,
“Upon Courts, equally the of the State Courts the Union, obligation guard, protect rests the enforce and every right granted by or the Constitution of the secured thereof, pursuance and the United States laws made in any proceed- rights whenever involved in suit or those are them; for, Judges before are ing the of the State Courts Constitution, an and required support to take oath to they the are bound it and the laws of United States pursuance made in thereof and all treaties made under land, ‘anything the authority, supreme their law of any contrary of to the in Constitution or laws State ” 624, 637, Connolly, notwithstanding.’ 111 U.S. Robb (1884). 544, 551, L. 4 S. Ct. Ed. protect and honor obligation of courts’ Because a may grant relief from rights, we federal constitutional legislature has even where the constitutional violation doing so. This is mechanism specific not delineated It legislating.” is “judicial of improper not a matter courts in our essential function of the intrinsic The Constitution system. federal constitutional legal of a code.’ Mc- ‘partake prolixity “does not speaks It Maryland, 4 Wheat. Culloch v. important One ‘its majestic simplicity. instead with ibid., rights. great objects,’ designation is And ‘its ibid., clearly outlines,’ as the judiciary discernible may through rights these be en- primary means which *** forced. textually in the absence of ‘a demonstrable At least a coordinate [an] commitment of issue to constitutional Carr, political department,’ Baker v. 369 U.S. (1962), presume justiciable rights we constitutional And, through courts. are to be enforced unless such merely rights precatory, the class of those are become rights litigants allege who that their own constitutional violated, and the same time have no ef- have been who at judiciary means than the to enforce these fective other rights, existing jurisdiction must be to invoke the able justiciable protection for the of their constitu- courts liberty’ rights. very tional essence of civil wrote Mr. ‘The Madison, 1 Marbury Cranch Chief Justice Marshall *14 137, right every (1803), ‘certainly in the of 163 consists laws, of the he protection to claim the whenever individual government is injury. receives an One of the first duties of ” Passman, protection.’ Davis v. 442 U.S. afford 228, 241-42, 860-61, 2264, 846, 2275 L. Ed. 99 S. Ct. (1979). by judge action taken the trial in this case was he
fully principles. consistent with these In no sense did he authority. contrary, his the the bounds of To overstep judges as fathers state precisely founding hoped acted the undertaking in He did not would act their duties. formulate public policy. He did not create new law. He merely gave effect to a right, basic constitutional right to effective assistance counsel. job. That was his It is our too. job we
Although agree with the trial court Lawton was entitled to challenge the attorney effectiveness of his by means a petition 1401, under section the appel 2— late court correct in rejecting was claim Lawton’s on the indicated, merits. we subject As have a defendant under proceedings Sexually Dangerous Persons Act right has a to effective assistance of counsel. Claims that this right has been denied are judged according to the two-prong, performance-prejudice test established Strickland v. Washington, 668, 674, 466 U.S. L. Ed. 2d (1984). Albanese, People v. S. Ct. 2052 104 Ill. 2d (1984). Under Strickland, 526-27 a defendant must prove that defense performance counsel’s fell below an objective standard of reasonableness and that performance substandard prejudice by caused creating that, reasonable but for probability errors, counsel’s trial result would have People Alvine, been different. performance of Lawton’s trial counsel this case did not foregoing meet standards for ineffectiveness. argument
Lawton’s regarding inadequacy his attorney’s trial representation centers on Lawton’s prior conviction in for which that convic- purposes admissible, tion was and the of proof State’s burden under Sexually Dangerous Act. His claim Persons First, twofold. he the attorney asserts that was ineffec- view, tive for in the erroneous acquiescing allegedly urged by adopted court, the State and the trial that the State the that required prove was not the defendant had propensities “demonstrated toward acts of sexual assault children,” required by or acts of molestation sexual (West 2002). argu- Act. See ILCS This 205/1.01 *15 easily disposed the record of. We have reviewed ment is that from the time court, and it clear from the trial is petition Act to the initial under the the filed its State judgment court, case rendered was time was litigated theory propensities” on the that “demonstrated proved that it the State’s burden must was Accordingly, prove trial counsel cannot them. Lawton’s legal having acquiesced in an erroneous be faulted standard. attorney argument is that his was
Lawton’s second that State could ineffective because he failed to assert prove solely rely on his 1987 conviction beyond demonstrated-propensities element a reasonable argument satisfy This merit. To doubt. also without demonstrated-propensities Act, element under prove must the defendant has committed or at State tempted at least one act of sexual assault or molestation. (“the (1985) People 91, Allen, v. See requirement that the defendant must have ‘demon propensities only strated’ his means that the commit solely psychological ment order cannot be based omitted)). speculation” may (emphasis do State by introducing People prior a record of a conviction. v. (2002); App. People Hancock, 329 Ill. 3d 380-81 see (2003) (commenting Masterson, v. 207 111.2d presented at obiter dicta that the defendant’s 14-year-old the evidence original hearing, including commitment exclusively upon conviction relied to show demonstrated propensities, justify was commitment under sufficient to standards); then-existing App. People Cole, 3d (1998) “[cjourt (holding 229, 234 records” demon prior strated the defendant committed sexual assaults minors); against App. People Ill. Studdard, see also (1980) (“Evidence prior sex crime is required prove clearly relevant the State is propensity has a commit sex crimes and defendant that his mental disorder had existed for more than one *** year. suggest [W]e the use of a certified copy of [the] conviction”).
In accordance with the foregoing authorities, the trial *16 court correctly judicial took notice of Lawton’s 1987 conviction, and that conviction was sufficient to meet the State’s burden of proving the demonstrated-propensities element. Had attorney objected Lawton’s to the use and sufficiency of the conviction to prove element, that objection would properly have been denied. The attorney therefore acted reasonably in refraining from asserting such an objection. Wilson, People See (1994) (holding that an attorney’s failure to make a futile objection does not constitute substandard perfor In re Ottinger, 333 Ill. App. mance); (2002). 3d note, moreover, We that admission of the conviction had a strategic benefit for Lawton. It saved him from disclosure of the embarrassing details behind the convic tion. See People Thorpe, 52 Ill. App. 3d Lawton does not suggest that his attorney was ineffec tive in any other respect. We therefore agree with ap pellate court that Lawton’s claim of ineffective assistance of counsel fails on its merits. Accordingly, the appellate court was correct when it reversed the judgment circuit court granting petition Lawton’s for relief under section 2—1401.
One remaining matter requires our attention. On the date of oral argument, Lawton filed a motion to cite and argue as additional authority our recent opinion Masterson. object, State did not and the motion was allowed. The argument advanced by Lawton his mo- tion is that the State did present not sufficient evidence at trial to satisfy sexually dangerous person standard in Masterson. we announced In response, the State Masterson, contends that year, decided last does not ap- ply Lawton, whose case was tried nearly years ago six and whose direct appeal long has since concluded. direct agree involved Masterson the State.
We sexually finding was appeal defendant of a appeal dangerous. an us involves before case Though petition. re we ruling a section the rule announced limited Masterson, we also manded in application. Masterson, prospective See in that case to (“a dangerousness finding of sexual Ill. 2d at premised upon 1.01 of SDPA of section the elements explicit accompanied by [citation] must hereafter person ‘substantially probable’ finding it is engage proceeding subject in the will the commitment if confined” in the future of sex offenses commission added)); Gupta, (emphasis Miller v. see also (1996) apply (stating decisions that this court’s 120, 128 retroactively only review). pending direct cases on cases and inapplicable to the case therefore
Masterson is today. us before appel- judgment foregoing reasons, of the
For the late court is affirmed.
Affirmed. part in consideration took no JUSTICE GARMAN or decision of this case. dissenting: FITZGERALD,
JUSTICE majority strongly agree that Lawton’s I with the I claim lacks merit. ineffective-assistance-of-counsel majority strongly disagree 2—1401 that section procedural provides com- for a defendant a new avenue Sexually Dangerous Persons Act mitted under the (SDPA) ineffective-assistance to assert abandoned claim. 1401, the defendant relief under section
To obtain 2— charges defense to the a meritorious must show both People presenting against diligencein it. See him due (2003). Generally, Pinkonsly, a 555, 207 Ill. 2d 565 v. er- 2—1401 involves under section meritorious defense 306 v. fact,
rors of not errors of law. See People Haynes, 437, Ill. 2d see also Burns v. People, 9 Ill. 2d (2000); (1956) 477, 480 a (noting that motion to correct errors of fact “is not available for the purpose correcting errors counsel). law,” at such as ineffective assistance of reason, “For this a section petition differs from postconviction petition. postconviction A petition requires the court to decide whether the defendant’s constitutional rights [citation]; were violated at trial a section 2—-1401 petition, hand, requires the other the court to determine whether facts exist that were unknown to the court at the time of prevented entry trial and would have judg- of the *** ment. [Citation.] long
We have
held
proceedings
that section 2—1401
are
appropriate
not an
forum for ineffective-assistance claims
because such claims do not challenge the factual basis for
judgment.”
Pinkonsly,
Though majority asserts that the relief in section 2— 1401 “in phrased terms,” the broadest possible those are no certainly terms broader than the various common law writs replaced by abolished and the statute. notes, the majority As section 2— 1401 provides 11relief and the grounds “[a] obtainable heretofore available, such relief of the by any whether heretofore otherwise, foregoing remedies or shall available in every case, by proceedings (Emphases hereunder.” added.) 1401(a) (West 2002). 735 ILCS Section 5/2 — 1401, thus, In looking. is backwards order to deter- 2— *18 relief, any given mine whether the statute affords such as relief from purportedly ineffective assistance of counsel, we must look to whether that relief was “hereto- Stat., Ill. Ann. ch. at common law. See fore” available Notes, at 608 1401, & Practice 110, Historical par. 2— 1983) (Smith-Hurd of the (“Occasionally analysis an by replaced of the various writs nature and limits of a evaluating propriety aids the court section section”), Frandsen v. Ander citing under this petition son, 108 Ill. 200-01 App. the common law writs of 2—1401 abolished
Section correct er- vobis, and coram which served to coram nobis review, bills of rors of fact. Section 2—1401 also abolished not limited to factual matters. which were Act, Practice “Prior to the 1955 revision of the Civil statutory obtaining no in Illinois for relief there was mode equity, if the term at from a decree of a court of which Hence, lawyers judgment passed. entered had Illinois was and a bill of equitable utilized the remedies a bill of review in the nature a bill of The courts held that these of review. bring bills could be used to to the attention of the matters upon court in three situations: for error of law the face of [citation]; newly the decree to establish discovered evidence [citation]; procurement fraud in the of the to show Stat., par. [citation].” decree Ill. Ann. ch. 2— (Smith-Hurd 1983). Notes, Historical & Practice at 605-06 then, Assuming, the relief under sec- available tion 2—1401 through extends as far as the relief available bills of review and in the nature of bills bills review errors, correct law the defendant is not in one of the three situations appropriate. where such relief is defendant here ap- does not contend that error of law Further, on the face of the trial initial order. pears court’s newly the defendant not contend that does discovered evidence case. change Finally, would outcome his the defendant not contend that the trial does court’s initial by simply order was obtained fraud. defendant contends that he received ineffective assistance law, grant counsel. At common Illinois courts would not party prevented bill of review “where the was proving important wrong facts advice his *19 308 attorney employed by complainant
counsel” or “the 1 neglected Puterbaugh, Chancery the case.” S. Illinois (7th 328, 1930); Pleading § and Practice at 490 ed. see Zile, § and Practice at Equity Pleading also E Van (1904) (“But unfaithfulness, mere or or 475 carelessness advice, documentary or proceeding upon wrong where counsel, evidence was lost or mislaid carelessness of review”). Thus, a the defendant support will not bill of an ineffective-assistance-of-counsel claim could raise petition. his section 2—1401 Board Chicago cites Sarkissian v. majority Education, Harvey, v. People (2002), and 201 Ill. 95 (2001), examples Ill. 2d 444 as of cases where we 196 petitions [section 1401] have “held that filed under 2— to challenge judgments also be used to claimed may In Sarkiss 212 2d at legal defective for reasons.” Ill. 297. ian, Board of Education never filed a section Chicago we sua sponte 2— 1401 labeled its motion petition; a void because judgment, purportedly vacate default statutory requirements, violated process service of Historically, section petition under statute. Law, of the Civil Practice predecessor, and its section 72 entered judgments to vacate default have been used Bluhm, Lusk v. See, e.g., defendant. without notice to the Nalepka, Swiercz v. (1944); 259 Ill. App. App. 349 filed a section Harvey, In the defendant sentencing that the trial court’s alleging 2—1401 motion statutory require it ran afoul of order was void because 1401(f) actually codifies a common law ments. Section 2— any at judgment to attack a void allowing litigants rule 1401(f) (West 2002) (“Nothing ILCS time. See 735 5/2 — any existing right affects contained this Section any judgment, employ or or to relief from a void order relief’). may litigant A method to existing procure (see J., (McMorrow, specially 2d at 454 Harvey, 196 111. (see Freeman, J.)), but need not joined by concurring, Harvey, J., Ill. 2d at concur (Fitzgerald, specially JJ.)), ring, joined by Garman, Thomas and file section nor Harvey 2—1401 motion to do so. Neither Sarkissian dictate section 2— 1401 should be available prosecute ineffective-assistance claims.
The defendant finds it ironic that he would have had if avenue of collateral attack he had convicted on been the underlying predatory charges. criminal sexual assault He apply asks this court “its fundamental fairness Flores, (see, e.g., People concept” 153 Ill. 2d (1984)) Gaines, (1992); People remedy sexually dangerous devise a similar persons. *20 To the extent the defendant’s fundamental-fairness argument due I implicates process, note that there is simply no due process right to a collateral attack on a final judgment of case. See United in a criminal conviction MacCollom, States v. 317, 323, 666, 426 U.S. 48 L. Ed. 2d (1976) (“The 674, 2086, 96 S. Ct. 2090 Due Process Clause of the Fifth Amendment does not any right establish to an appeal and certainly any [citation] does not right establish to collaterally attack a judgment conviction”), final cit Illinois, v. ing 12, 18, 351 891, 898, U.S. 100 L. Ed. Griffin (1956) 585, 76 S. Ct. 590 4 (plurality op.); generally see (1995). Am. Appellate Review § Jur. 2d Postconviction and other collateral proceedings remain a matter of legisla grace. tive theAs United States Supreme Court indicated v. Pennsylvania Finley, 551, 556-57, 481 U.S. Ed 95 L. (1987): 539, 2d 1990, 107 S. Ct. “Postconviction relief is even further removed from the criminal trial discretionary than is direct review: It is not part itself, proceeding the criminal and it is in fact considered to be civil in nature. It is a collateral attack normally only occurs after the defendant has failed to through secure relief direct review of his conviction. States obligation have no to provide this avenue of relief ***.” If the state need not provide postconviction avenue of relief Code, to a defendant convicted under the Criminal provide an avenue of need not
it follows that state committed under attack to a defendant collateral SDPA.1 Assembly acted, not we should has General proceedings graft layer onto the of collateral
decline to name of fundamental fairness. Judicial in the SDPA (Gordon Department appropriate legislation is never (1983) (“It Transportation, is the Ill. 2d codify public policy; legislature’s we refrain task to judicial legislation”)), impermissible undertaking such particularly inappropriate in this case because and it is assistance of did not receive ineffective the defendant opens majority to the short, a door In counsel. analysis only “[S]uch claim, it closed. slam defendant’s disposition” necessary opinion here. Best for the or is Taylor Works, We Machine any 2—1401 a that section is determination save should in which the claims for a case for constitutional vehicle greater remedy or, in violation need to a constitutional fact, exists at all. plight recognize and others of the defendant
I sexually dangerous sexually prosecuted violent or persons, ineffective assistance to raise claims of who seek repre- being proceedings after in collateral of counsel appeal. attorney But and on at trial the same sented precedent our section not disavow we should to assert catchall vehicle and define that statute *21 necessary to achieve some claims when constitutional punch justice. vaguely We should notion of sketched any leak sense statute, out of which will in the a hole finality and civil law. in our criminal disposition, appropriate I enthu- and one
A more far siastically find as we followthe law endorse, be to would petition, reject defendant’s section it, in this argument equal protection raises no 1The defendant regard. crafting attention on Assembly’s
focus the General in defendants collateral which appropriate proceeding Persons Act and the Sexu- Sexually Dangerous under the claims Persons Act can assert constitutional ally Violent acts, such defendants legislature nature. Until the this should find recourse for their ineffective-assistance direct only appeals. claims their I dissent. dissent. joins
JUSTICE THOMAS (No. 96755. CANEL,
JAMES H. v. JUDY BAAR Appellee, al., TOPINKA et Appellants.
Opinion October 2004. filed