THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DENNIS LIGON, Appellant.
No. 108855
Supreme Court of Illinois
November 18, 2010
239 Ill. 2d 94
Conclusion
For the foregoing reasons, the judgment of the appellate court remanding the cause to the circuit court is reversed and the judgment of the circuit court is affirmed.
Appellate court judgment reversed; circuit court judgment affirmed.
Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, State‘s Attorney, of Chicago (Alan J. Spellberg
JUSTICE THOMAS delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.
OPINION
At issue is whether the federal constitution requires appointment of counsel for indigent postconviction petitioners at the summary dismissal stage whenever the appellate court on direct review has declined to address an ineffective assistance of counsel claim because the facts needed to adjudicate the claim are dehors the record and thus cannot be resolved on direct review. For the reasons that follow, we hold that the constitution does not require the appointment of counsel in such cases.
Following a jury trial, defendant, Dennis Ligon, was convicted of aggravated vehicular hijacking (
Defendant‘s trial began on April 2, 2003. Defendant was represented by assistant public defenders Anthony Thomas and Camille Calabrese. Just before opening statements on April 2, 2003, Thomas informed the court that he intended to call the defendant‘s son, Dennis Compton, as a witness, stating that he had interviewed Compton for the first time the previous day. Thomas further explained to the court that the name was given to him by the prosecution, which learned of Compton when interviewing another witness. The prosecutor did not object to the defense calling Compton, noting that she also had an opportunity to speak to him the prior day.
In her opening statement, Calabrese told the jury that this would be a “text book case of misidentification,” stating that defendant‘s son, Dennis Compton, is almost his father‘s look-alike and that the jury would learn that “the actual story behind this case is of a father who is protecting his son.” She also told the jury that she believed she was going to be able to produce Dennis Compton, noting that he had been subpoenaed. She stated that she was confident that after the jury heard his testimony, it would have a reasonable doubt as to defendant‘s guilt. She concluded that defendant “may be guilty of protecting his son, but that doesn‘t mean he‘s guilty of taking this automobile.”
Briefly, the evidence presented by the State at trial included the testimony of several witnesses. Ana Diaz testified that on December 16, 2000, defendant approached her in broad daylight as she exited her red Ford pickup truck at a Sears parking lot off of Western Avenue in Chicago. Defendant pushed a gun into her ribs and told her to leave the keys in the ignition and to get out. He then proceeded to drive away in her truck. On January 3, 2001, the day her truck was recovered by police and defendant was arrested, she immediately and
Three other witnesses that knew defendant testified that they observed him driving the truck between December 16, 2000, and January 3, 2001. On the evening of January 2, 2001, defendant drove Georgio Dawson, a 13-year-old boy, and Tenita Barber, a 17-year-old girl, around in the truck. After dropping Dawson off at an apartment building where the truck was eventually recovered, defendant drove Barber around town drinking liquor and smoking marijuana with her. Defendant told Barber he had just bought the truck. Around 5:10 a.m., on January 3, 2001, the two returned to the place where they had left Dawson. Defendant honked his horn, but then got out of the truck when Dawson did not come out. After defendant had walked away from the truck, Dawson came out and got in the truck. Shortly thereafter, police arrived and discovered that the truck had been stolen. They searched it and recovered a BB gun from the driver‘s side. Dawson told police that the man who had been driving the truck was named “Dennis.” Police then took Dawson to look for the man who had been driving the truck in question. Dawson pointed defendant out at an El station about a block and a half from where the truck had been parked. After verifying from defendant that his first name was Dennis, police placed him under arrest.
The jury found defendant guilty of aggravated vehicular hijacking. Following his trial, defendant filed a pro se motion for judgment notwithstanding the verdict, arguing, among other things, that his trial counsel was ineffective by confessing defendant‘s “guilt in protecting his son” and then not calling Dennis Compton to testify, thereby leaving the jury with the impression that
At the hearing on defendant‘s posttrial motion, Thomas, defendant‘s trial counsel, testified that prior to trial he developed a strategy of misidentification because he believed the descriptions of the hijacker more closely resembled Compton than defendant. During two interviews with defense counsel, Compton‘s account with regard to the red Ford pickup truck was erratic, contradictory and inconsistent. At one point during the interviews, when Thomas pointed out that Compton‘s account was inconsistent, Compton asked Thomas, “What do you want me to say?” This comment caused Thomas to believe that he would be suborning perjury if he called Compton to testify. Moreover, on the day that Compton was to testify, he was arrested in the courthouse for intimidating Dawson. Thomas was concerned that if Compton should be called, the facts of the intimidation offense would come out before the jury and harm defendant‘s case. Thomas noted that due to the above-discussed considerations, the jury would not view Compton as a favorable witness. Thomas expressed his concerns about Compton to defendant, but told defendant he would call Compton if defendant wanted. Defendant agreed that Compton should not be called. Thomas
Compton testified at the hearing that during his interviews with the public defenders he did not indicate what his testimony would be. During the hearing, Compton testified that neither he nor defendant committed the hijacking and that he had not witnessed who did. Compton admitted that during the trial, he was arrested and eventually pled guilty to communicating with the witness Dawson.
Defendant testified at the hearing on his posttrial motion that he did not tell Thomas not to call Compton. According to defendant, on the morning he was arrested, he was on his way to visit Compton, who happened to live near where the truck was recovered and who had knowledge of the truck‘s origins.
The trial court denied defendant‘s posttrial motion. At sentencing, the State presented certified copies of two of defendant‘s prior convictions. The trial court sentenced him to life in prison as a habitual offender, as it was required to do by statute (
On direct appeal, defendant argued that he was denied the effective assistance of counsel in three ways: (1) his trial attorneys said in opening statements that they would produce defendant‘s look-alike son, Dennis Compton, at trial and would show that he lived near where the truck was recovered, but failed to do so; (2) they failed to properly investigate the case prior to trial when they did not interview Compton until after the trial had begun; and (3) they did not have a reasonable basis to believe that Compton would testify when they made their opening remarks. The appellate court affirmed defendant‘s conviction. Ligon I, 365 Ill. App. 3d 109. In doing so, it rejected his first ineffective assistance of counsel claim, which argued that his attorneys erred
In March 2007, defendant filed a pro se petition for postconviction relief, but made no mention of any of the claims of ineffective assistance of counsel litigated during the posttrial hearing or on direct appeal. Instead, defendant‘s petition alleged that the applicable sentencing statute was unconstitutional and that his attorney on direct appeal had rendered ineffective assistance by failing to argue the unconstitutionality of the sentencing statute. The circuit court summarily dismissed the petition as frivolous and patently without merit.
On appeal from the summary dismissal of his postconviction petition, defendant did not contest the propriety of the circuit court‘s determination that the claims presented in his petition were frivolous and patently without merit. Rather, defendant argued that, following the direct appeal, the appellate court should have appointed counsel to represent defendant for the postconviction proceeding. Defendant contended that the appellate court‘s deferral to postconviction review of claims that defendant attempted to raise on direct appeal served to create an unconstitutional “additional barrier to direct review.” Defendant maintained that the appel-
The appellate court rejected defendant‘s arguments. Ligon II, 392 Ill. App. 3d 988. First, the court found that defendant‘s claims of ineffective assistance of trial counsel could not be considered because defendant did not include them in the petition; they were therefore waived, and the appellate court had no authority to excuse the waiver. Ligon II, 392 Ill. App. 3d at 995, citing People v. Jones, 213 Ill. 2d 498, 505 (2004). Second, the appellate court rejected defendant‘s argument that deferral of the two ineffective assistance of counsel contentions from direct appeal to postconviction entitled defendant to the appointment of counsel. The court found that nothing in the treatment of the case on direct appeal removed it from the ambit of well-established precedent that has long recognized that “neither fundamental fairness nor due process considerations require that an attorney be appointed for postconviction petitioners.” Ligon II, 392 Ill. App. 3d at 996, 1000, citing People v. Jones, 211 Ill. 2d 140, 148 (2004). The appellate court held that Halbert was inapplicable because “defendant‘s position in filing his pro se postconviction petition seeking collateral and second-tier review of his claims was not analogous to the defendant in Halbert, who was seeking first-tier review of his conviction.” Ligon II, 392 Ill. App. 3d at 1000. The appellate court further determined
ANALYSIS
Before this court, defendant raises the same argument that he raised below in his appeal from the summary dismissal of his postconviction petition.
The Post-Conviction Hearing Act (
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. Jones, 213 Ill. 2d 498, 503 (2004). The Act contemplates a three-stage process for non-death-penalty cases. Jones, 213 Ill. 2d at 503. A circuit court may summarily dismiss a postconviction petition if it determines that the petition is “frivolous or is patently without merit.”
In his brief before this court, defendant initially argues that given the evidence in the record from the posttrial hearing, the appellate court on direct appeal in Ligon I could have, and should have, ruled on all of his ineffective assistance claims. He also asserts that in Ligon II, the appellate court recognized that its refusal to adjudicate the two ineffective assistance claims on direct appeal was the result of a misapprehension of the record, as the court in Ligon I mistakenly believed that defense counsel had not interviewed Compton until after trial began. Defendant is completely wrong on both counts.
First, we note that the appellate court in Ligon I determined that the two ineffective assistance claims at issue here involved matters dehors the record that were more appropriate for a postconviction proceeding. This determination is res judicata. The appellate court‘s deci-
“Rather, [defendant] is claiming that, once this court decided to relegate claims raised on direct appeal to the post-conviction process [Ligon I, 365 Ill. App. 3d at 122-23], the equal protection and due process clauses of the constitution required the automatic appointment of counsel to raise those claims in a post-conviction petition. See Halbert, 545 U.S. at 616-17; Douglas, 372 U.S. at 356. Thus, the claim of error here is the failure to appoint post-conviction counsel before dismissing the petition, not this Court‘s decision to relegate claims to the post-conviction process.” (Emphasis in original.)
Under the circumstances, we find that defendant is now barred from advancing the argument that the appellate court improperly failed to adjudicate the ineffective assistance of counsel claims on direct appeal.
We also note that where, as here, the record is insufficient because it has not been precisely developed for the object of litigating a specific claim of ineffectiveness raised in the circuit court, thereby not allowing both sides to have an opportunity to present evidence thereon, such a claim should be brought on collateral review rather than on direct appeal. People v. Bew, 228 Ill. 2d 122, 134 (2008), citing Massaro v. United States, 538 U.S. 500, 504-06, 155 L. Ed. 2d 714, 720-21, 123 S. Ct. 1690, 1694 (2003); compare People v. Whitehead, 169 Ill. 2d 355, 372 (1996) (a claim of ineffective assistance of trial
Second, there is no indication from Ligon II that it believed that the court‘s refusal in Ligon I to adjudicate the ineffective assistance claims would have been any different had Ligon I not been mistaken about the timing of trial counsel‘s interview of Compton. Ligon II acknowledged in a footnote that Ligon I had mistakenly believed that defense counsel had not interviewed Compton prior to trial. This misapprehension clearly would not have affected the decision to defer adjudication of the third claim of ineffective assistance that defendant raised on direct review, however, because defendant‘s trial attorneys were not asked at the posttrial hearing about their reasons for their opening statement that Compton would testify even though it appears they had their doubts about him as a witness from their interview the prior day. The footnote in Ligon II went on to explain that the error in assessing the record was caused by defendant‘s repeated misstatements in his appellate briefs claiming that trial counsel had not interviewed Compton prior to trial. It must also be pointed out that had the appellate court undertaken an accurate reading of the record and then decided to adjudicate the second ineffective assistance claim—which alleged that defense counsel had not interviewed Compton prior to trial—the claim surely would have been rejected, as it was completely contradicted by the trial
We turn now to the main issue raised by defendant‘s appeal. He asserts that in light of the United States Supreme Court‘s decision in Halbert, dismissal of his postconviction petition violated the equal protection and due process clauses of the federal constitution because counsel was not appointed to assist him in preparing his postconviction petition. Despite the well-settled law in this state that pro se litigants are not constitutionally entitled to the appointment of counsel in non-death-penalty cases at the summary dismissal stage (
We begin our analysis of Halbert‘s application to the current case by discussing the United States Supreme Court precedent that informed the Halbert decision. In Douglas v. California, 372 U.S. 353, 356-57, 9 L. Ed. 2d 811, 814, 83 S. Ct. 814, 816 (1963), the Court held that an appellate court is required to provide court-appointed counsel to an indigent defendant when that court reviews an as-of-right appeal from a criminal conviction. The state procedure in that case required that the appellate court, upon receiving an indigent‘s request for counsel, make an independent investigation and determine if the appointment of counsel would benefit the defendant or the courts. Douglas, 372 U.S. at 354-55, 9 L. Ed. 2d at 813, 83 S. Ct. at 815. The kind of appeal available to the defendant depended upon whether he could afford counsel: if not, the appellate court would “prejudge the merits before it [could] even determine whether counsel should be provided.” Douglas, 372 U.S. at 356, 9 L. Ed. 2d at 814, 83 S. Ct. at 816. On the other hand, a nonindigent defendant with counsel was “not faced with the preliminary ‘ex parte examination of the record,’ [citation] but had their arguments presented to the court in fully briefed form.” Ross v. Moffitt, 417 U.S. 600, 608, 41 L. Ed. 2d 341, 349, 94 S. Ct. 2437, 2442-43 (1974), quoting Douglas, 372 U.S. at 356, 9 L. Ed. 2d at 814, 83 S. Ct. at 816. The Court concluded that an appeal without the benefit of organization and argument by counsel would be a “meaningless ritual” for most indigents. Douglas, 372 U.S. at 358, 9 L. Ed. 2d at 815, 83 S. Ct. at 817. Thus, Douglas taught that “where the merits of the one and only appeal an indigent has right of are decided without benefit of counsel *** an unconstitutional line has been drawn between rich and poor.” (Emphasis omitted.) Douglas, 372 U.S. at 357, 9 L. Ed. 2d at 814, 83 S. Ct. at 816. Douglas involved only a defendant‘s first appeal of right and did involve the appointment of counsel ” ‘for the preparation of a petition for discretionary or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court.’ ” Mar-tinez v. Schriro, 623 F.3d 731, 737 (2010), quoting Douglas, 372 U.S. at 356, 9 L. Ed. 2d at 814, 83 S. Ct. at 816.
In Ross v. Moffitt, 417 U.S. at 610-11, 41 L. Ed. 2d at 351, 94 S. Ct. at 2443-44, the Court refused to extend the right to counsel beyond the first appeal as of right from a conviction. There, the state supreme court provided discretionary review of a conviction after mandatory review by an intermediate appellate court, and the state supreme court‘s acceptance of the appeal was based on public importance and other indicia not related to the merits. Ross found it significant that the defendant had the benefit of counsel in his appeal to the appellate court, along with the record, the opinion from the court and counsel‘s arguments. The work product of counsel, supplemented with defendant‘s pro se petition for review, would provide the state supreme court with an adequate basis to grant or deny review. Ross, 417 U.S. at 615-17, 41 L. Ed. 2d at 353-54, 94 S. Ct. at 2446-67. Ross rejected due process and equal protection challenges to the procedure, concluding that a state “need not provide any appeal at all” and the state does not act unfairly by refusing to provide indigents with counsel “at every stage of the way.” Ross, 417 U.S. at 611, 41 L. Ed. 2d at 351, 94 S. Ct. at 2444. Ross solidified its conclusion by discussing the role of the state supreme court as not sitting to correct an adjudication of guilt in individual cases, but rather to review cases where a matter of public interest was at stake, a significant legal principle was involved or a conflict with precedent existed. Ross, 417 U.S. at 615, 41 L. Ed. 2d at 353-54, 94 S. Ct. at 2446.
Over a decade after Ross, the Supreme Court decided Pennsylvania v. Finley, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 545, 107 S. Ct. 1990, 1993 (1987), which held that there is no federal constitutional right to counsel for an appeal mounting a collateral attack against a criminal conviction. Finley noted that previous cases had estab-
“[T]he analysis that we followed in Ross forecloses respondent‘s constitutional claim. *** Post-conviction relief is even further removed from the criminal trial than is discretionary direct review. It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature. [Citation.] It is a collateral attack that normally occurs only after the defendant has failed to secure relief through direct review of his conviction. States have no obligation to provide this avenue of relief [citation], and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well.
Nor was the equal protection guarantee of ‘meaningful access’ violated in this case. By the time respondent presented her application for postconviction relief, she had been represented at trial and in the Supreme Court of Pennsylvania. In Ross, we concluded that the defendant‘s access to the trial record and the appellate briefs and opinions provided sufficient tools for the pro se litigant to gain meaningful access to courts that possess a discretionary power of review. [Citation.] We think that the same conclusion necessarily obtains with respect to postconviction review.” Finley, 481 U.S. at 556-57, 95 L. Ed. 2d at 547, 107 S. Ct. at 1994.
We now turn to Halbert, where the Supreme Court addressed whether indigent criminal defendants who seek to bring a first-tier direct appeal after pleading guilty or nolo contendere have a right to appointed counsel. Specifically
In the present case, defendant urges a right to counsel on collateral review in a postconviction proceeding, as that was essentially the first genuine opportunity he had to present his ineffective assistance of trial counsel claims, which as discussed above, were not appropriate for direct review. We note that under Illinois law, a collateral postconviction proceeding is most often the first point at which an ineffective assistance of counsel claim will be presented. Indeed, issues that could have been considered on direct appeal are deemed procedurally defaulted in a postconviction proceeding. West, 187 Ill. 2d at 425. Defendant argues, therefore, that his contention is similar to those considered in Halbert and Douglas. He makes four basic points in support of his argument: (1) the postconviction proceeding would be the first time, and thus the “first tier,” that he would have been allowed to receive an adjudication on the two ineffective assistance claims in question; (2) because the Post-Conviction Hearing Act does not provide for appointment of counsel until after an indigent defendant has stated the gist of a meritorious claim, he did not have the assistance of counsel in preparing his petition; (3) pro se defendants are not adequately equipped to pursue this sort of first-tier review; and (4) defendant‘s premature assertion of the two ineffective assistance claims not adjudicated on direct appeal somehow placed him in a different position from defendants who wait to bring such claims until postconviction, so that he should be appointed counsel even if the others are not.
The defendant then filed a habeas petition in federal district court, which was denied. On appeal to the Ninth Circuit Court of Appeals, the defendant argued that he was entitled to the effective assistance of counsel in connection with his first postconviction petition because that proceeding was the first opportunity for him to
Martinez then addressed the contention that pro se defendants are ill-equipped to represent themselves in collateral proceedings. The court was unmoved by this general assertion, noting the assistance of counsel would “aid any indigent defendant in pursuing review of his conviction, whether by first-tier or second-tier appeal, or by collateral review.” Martinez, 623 F.3d at 740-41, citing Ross, 417 U.S. at 616, 41 L. Ed. 2d at 354, 94 S. Ct. at 2446-47. Martinez found it relevant that the defendant pursuing collateral review faces less of a handicap than a defendant pursuing a first appeal because a collateral-review defendant has already received the assistance of counsel in a prior proceeding, like the defendant in Ross. Martinez, 623 F.3d at 741. A defendant pursuing collateral review “would have ‘at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion by the Court of Appeals
We find the rationale of Martinez on this point to be persuasive. The defendant in Halbert faced “far more daunting legal hurdles” than defendant in our case. Ligon II, 392 Ill. App. 3d at 999. Defendant in Halbert had to file an application for review setting forth the law that supports the defendant‘s position and explaining how that law applies to the facts of the case. Halbert, 545 U.S. at 622, 162 L. Ed. 2d at 567-68, 125 S. Ct. at 2593-94. Here, in contrast, defendant needed only to present the “gist of a constitutional claim” to survive summary dismissal. Jones, 213 Ill. 2d at 504. Moreover, he only needed to present a “limited amount of detail” (Hodges, 234 Ill. 2d at 9) and did not need to “make legal arguments or cite to legal authority” (Gaultney, 174 Ill. 2d at 418). This is a purposely low threshold that is one of the factors that distinguishes this case from Halbert and Douglas.
We further note that defendant in the present case was much more equipped to present his claims on collateral review than any of the defendants in the cases mentioned above, including Martinez. Here, defendant was armed with the following at the time he prepared his petition for postconviction relief: (1) copies of the petition for leave to appeal drafted by his appellate lawyer, which included 4½ pages on the issue of ineffective assistance of trial counsel; (2) copies of his appellate counsel‘s appellant and reply briefs; (3) the petition for rehearing prepared by appellate counsel, which also
Martinez next addressed the defendant‘s argument that collateral review of his ineffective-assistance claim involves a “determination on the merits.” Martinez, 623 F.3d at 741. Martinez rejected this contention, finding that the case did not involve a determination on the merits in the same way that Halbert and Douglas did. Martinez, 623 F.3d at 741. This was because there was no impediment presented to the defendant gaining first-tier review of his conviction, and the court performed no “gatekeeping function” that would bar the defendant from presenting his ineffective assistance of counsel claim. Martinez, 623 F.3d at 741. Similarly, in the case before us there was no obstacle presented by the court to a review of defendant‘s conviction on direct appeal, and defendant merely had to allege his ineffective assistance claims in his postconviction petition to receive the appointment of counsel. Thus, there was no “gatekeeping function” imposed in this case.
We find the federal Court of Appeals decision in Martinez to be well reasoned and persuasive. We therefore adopt its reasoning. Accordingly, we conclude that defendant had no right to the appointment of counsel at the summary dismissal stage of his postconviction proceeding, even where the proceeding may have presented the first real opportunity he had to raise two of his claims of ineffective assistance of trial counsel.
As a final matter, we note that defendant made the alternative argument in his briefs to this court that we should exercise our supervisory authority to remove the barrier to appellate court review set forth in Jones, 213 Ill. 2d at 508, and then remand the cause to the appellate court for consideration of the unadjudicated claims. We find that defendant forfeited this argument by failing to raise it in his petition for leave to appeal before this court. See People v. Williams, 235 Ill. 2d 286, 298 (2009). At any rate, the issue is moot given our resolution of the above-discussed issue, which was raised in defendant‘s petition for leave to appeal, and our holding that, under the circumstances of the present case, defendant had no federal constitutional right to the appointment of counsel at the summary dismissal stage of the postconviction proceeding.
CONCLUSION
For the foregoing reasons, we affirm the judgment of
Affirmed.