*1 (No. 94644. ILLINOIS, Appel- OF THE STATE OF
THE PEOPLE PINKONSLY, v. ROBERT Cross-Appellee, lant Cross-Appellant. Appellee
Opinion November filed *2 C.J., McMORROW, concurring in J., FREEMAN, joined by dissenting part. part and General, Attorneys Ryan Madigan, E. and Lisa
James Pack, of Attorney, State’s Gary W. Springfield, of (Lisa Josephson, and Mark L. Anne Hoffman Woodstock J. General, Chicago, and Norbert Attorneys Assistant Bauer, M. Goetten, Martin E Moltz and Lawrence Prosecutor, of Attorneys Appellate Office the State’s counsel), People. Elgin, of for the Anfinson, Aurora, for and cross- appellee L.
Carol appellant. *3 opinion of the FITZGERALD delivered
JUSTICE court: Pinkonsly, defendant, Robert both
The State and the affirming part court appellate appeal decision County circuit court vacating McHenry part amended under dismissing the defendant’s order (735 Procedure ILCS 2—1401 of the Code of Civil 2002)). (West erred Because 5/2 —1401 delivery aof the defendant’s unlawful vacating and in sentences convictions and controlled substance on his narcotics sentence vacating extended-term conviction, reverse. racketeering we
BACKGROUND 1989, grams sold 27.2 4, the defendant On December Again, on officer. police to an undercover cocaine grams 1989, 6, December the defendant sold 53.3 Finally, cocaine the officer. 12, 1989, on December grams defendant sold 124.1 of cocaine officer.The during defendant was arrested this last sale. He was later delivery on indicted one count of of between 15 and 100 (see grams of a controlled substance 1989, Rev. Stat. par. 1401(a)(2)(A), currently 561/2, ch. codified at 720 570/401(a)(2)(A)(West2002)), delivery ILCS one count of grams of between 100 and 400 of a controlled substance (see 1401(a)(2)(B), par. 1989, 56V2, Ill. Rev. Stat. ch. cur 570/401(a)(2)(B)(West rently 2002)), codifiedas 720 ILCS (see racketeering and one count of narcotics Ill. Rev.Stat. 1654(a), par. currently 56V2, ch. codified at 725 175/4(a) (West 2002)). delivery ILCS The unlawful of racketeering felonies; fenses were XClass the narcotics felony. offense was a Class August On 23, 1991, the defendant was convicted on sentencing, all three counts. At the State asked the trial court to sentence the defendant to two 60- concurrent year, extended-term sentences convic- 15-year and a tions consecutive sentence on the narcotics racketeering objected conviction. Defense counsel “[tjhere necessary findings been no have or evidence to indicate extended terms.” The court sentenced the 30-year defendant to two concurrent delivery sentences on the 30-year, convictions and another concurrent extended-term sentence on the raising appealed, conviction. the sole is- purported speedy-trial sue of a violation. People Pinkonsly,
court affirmed. See No. 2—91—1093 (1993) (unpublished Supreme order Court Rule 23). years conviction,
More than six after his on December the defendant filed a se “Petition for Relief *4 Judgment” from 2—1401 of the Code Civil The at- Procedure. defendant asserted that his trial to reduce failing to file a motion for torney was ineffective racketeering and for narcotics the defendant’s sentence delivery unlawful the defendant’s motion vacate of narcotics offenses as lesser-included convictions an for attorney The trial court racketeering. an defendant, filed attorney and this new SENTENCE,” TO REDUCE “AMENDED PETITION defendant’s sentence arguing length that the only light age. of his The State did was excessive it. respond to this and the trial court dismissed ap and the court appealed, appellate The defendant On pointed attorney appeal, another for defendant. attorneys, prior the defendant contended that all of his on including court-appointed his section constitutionally 2—1401 ineffective petition, were failed to his extended-term they challenge because racketeering, they and failed to at sentence narcotics delivery tack his unlawful convictions as lesser-included appellate The court racketeering. offenses narcotics (1) briefing ordered two issues: whether supplemental are delivery and unlawful based (2) act; physical on the same and whether v. Cal (1989), 185 Ill. 3d which held that Class laway, App. 1, 2, convictions were felony unlawful racketeering, Class lesser-included offenses of narcotics 1 felony, here. applied court, justice af dissenting,
The with one Ill. 3d part part. App. firmed and vacated that the defen rejected argument court the State’s untimely, 2—1401 because dant’s section to the trial court. argument the State did not present then declined to App. 331 Ill. at 986. ineffective-assistance claims consider the defendant’s attorneys, reasoning regarding his trial cognizable are not in a section claims such however, 3d at 986-87. The petition. App. *5 560 argument
addressed the
attorney
defendant’s
that his
on
his section 2—1401 petition
failing
was ineffective for
to
raise the issue of
delivery
whether unlawful
was a lesser-
included offense of
racketeering.
narcotics
331
App.
Ill.
at
3d
987. The
familiar,
court
recited the
two-prong
Strickland v.
Washington,
668,
466
U.S.
80 L. Ed. 2d
(1984),
“The racketeering allega count an contained tion that participated a pattern of narcotics activity. allegation necessarily That implied that defendant 2, 1, committed X two Class or felonies under the Cannabis [citation] Control Act or the Illinois Controlled Substances I alleged Act. Counts and II that defendant committed two Class X felonies under the Illinois Controlled Substances Accordingly, statutory Act. elements of narcotics racketeering implicitly were contained the unlawful- delivery-of-cocaine counts, a fact that renders the unlawful- delivery-of-cocaine lesser-included See counts offenses. (1989).’’ People Callaway, v. 185 3d App. Ill. 136 331 Ill. App. at 3d 988.1
The court held that
the defendant’s
section 2—1401
Smith,
1The
People
court here also cited
v.
Ill.
295
(1998),
3d
App.
parenthetically noting
405
Appellate
that “the
Court,
District,
possession
Fifth
X
vacated a Class
of a controlled
(cocaine)
deliver, stating
substance
with intent
that it
awas
racketeering.”
lesser-included offense of narcotics
331 Ill.
3d
App.
only
at
holding,
989. Our review Smith reveals such a
but
designated
unpublishable
Supreme
material
Court Rule
holding, accordingly,
precedential
23. That
had no
value
should
upon by
not have been relied
court. See 166 Ill. 2d R.
23(e) (“An unpublished
precedential
order of
court is not
may
any party except
support
not be cited
contentions of
judicata,
res
jeopardy,
estoppel
double
collateral
or law of the
case”);
Hutson,
(2002);
App.
Baker
333 Ill.
3d
(2000).
Petty,
3d
App.
Ill.
failing
this issue and
raise
ineffective for
and sentences
convictions
vacated
App.
3d at 989.
331 Ill.
counts.
both
at
that the defendant’s
further held
torney
challenge
for
was not ineffective
on his narcotics
extended-term sentence
App.
Though
at 991.
conviction. 331
for
the extended-term
the trial court did
offer basis
sentencing
sentence,
at
that the
mentioned
State
felony
“pos
prior
defendant had a
conviction
Class
App. 3d at
with intent to
331 Ill.
session
deliver.”
initially
majority opinion
that the
dissent
noted
*6
the central issue
this case: whether
did not address
predicate
are
offenses. 331 Ill.
offenses
lesser-included
reviewing
(O’Malley, dissenting).
App.
J.,
After
3d at 991
States,
764,
L. Ed.
773,
v.
U.S.
85
2d
Garrett United
471
(1985),
Supreme
the United States
ANALYSIS (1) appeal, In its raises three issues: State whether court erred in relief granting 2—1401 petition it because (2) untimely; whether the appellate grant court erred in ing relief on the petition because ineffective of assistance counsel claims are not cognizable in section (3) proceedings; whether the appellate court erred in relief granting petition on the defendant’s a because unlawful of controlled substance not a lesser-included offense racketeering. the trial We review court’s dismissal of the defendant’s section 2—1401 petition for an abuse discretion. See (2000). People Haynes, v. 192 Ill. 2d Section 2— 1401 of Code Procedure, of Civil formerly Act, section 72 the Civil Practice a provides comprehensive statutory procedure by which final orders be judgments may challenged more than 30 days entry. People after Harvey, their 196 Ill. 2d (2001) (stating provides section 2— 1401 a civil cases). remedy, applies which also criminal A section 2—1401 petition years filed more than two after the chal lenged judgment cannot be considered absent clear showing seeking relief was person or or disability grounds duress for relief were Caballero, fraudulently concealed. 179 Ill. 2d (West 1401(c) (1997); 210-11 see 735 ILCS 5/2 — 2002). If the party opposing the section 2—1401 *7 defense, does not raise the period may limitations it Harvey, waived. 196 Ill. 2d be See at 447.
The defendant on August 23, was convicted but se he did file petition not his until 17, 1997, two-year October the beyond well limitations period. The State did not the timeliness before raise issue court, the trial it did raise issue in though that answer- ing the to appeal. The State refers us the prevailing may “well-established rule” that a raise party on were appeal issues that not raised at trial. an that, appellee generally, the State with agree
We
trial court’s
support
arguments
any
raise
may
not raised before
they were
though
even
judgment,
factual basis
a sufficient
they have
provided
trial
2d
Monroe, 118 Ill.
v.
People
court. See
the trial
before
Schott,
Ill. 2d
(1987);
People
see also
298, 300
(1991).
189 Ill.
However,
Wright,
the State
from
argument
(1999),
a similar
we addressed
the Post-Conviction
petition
context of a
in the
1994))
(West
(725
seq.
et
Act
ILCS
Hearing
5/122—1
In
rule.
to the waiver
apply
exception
to
this
declined
that the defendant’s
on
argued
appeal
the State
Wright,
it
he filed
untimely because
petition
postconviction
to
of his motion
the denial
months after
more than six
petition
certiorari
the denial
his
reconsider
responded
defendant
Court. The
Supreme
United States
argu
period
limitations
had waived its
that
State
trial court. The
it
failing to raise
before
by
ment
We stated:
upon
exception.
relied
this
State
that
“Here,
the conclusion
although
support
the facts
the time limits
petition
did not file his
within
defendant
a defendant to
that section allows
found in section 122—
fil
if the late
period
limitations
outside the
petition
file
negligence. [Cita
culpable
ing
not due to the defendant’s
ap
the cause was
By
raising this issue until
tion.]
not
from
effectively
defendant
precluded
has
peal, the State
demonstrating
allege
facts
seeking
to amend his
negli
by
culpable
his
filing was not caused
the late
requires the
recognize that section
gence. While we
demonstrating
a lack of
facts
allege
require
negligence, we do
believe
culpable
to raise an
appeal
until an
the State to wait
ment allows
may be able to avoid
that the defendant
affirmative defense
this issue
By
to raise
amending
petition.
argue that
right
below,
has waived its
the State
Wright,
to the culpable negligence defendant’s 725 ILCS (West 1(c) 2002)), section 2—1401 has an excep 5/122 — tion to its for period delays limitations attributable (see duress, or disability, fraudulent concealment 735 1401(c) (“Time during person ILCS which the seek 5/2 — is under ing legal disability relief or duress or the ground for is fraudulently relief concealed be shall excluded in 2 computing period years”)). We conclude that our Wright applies statement with equal force here. If the State wished to that argue section untimely, 2— 1401 it should have done so trial court, any before the where amendments could have and any disputes been made factual could have been Wright, resolved. 2d at 189 Ill. 12. The State waived its argument. timeliness turn to the propriety We petition. se In a memorandum supporting alia, inter claimed, the defendant that he deprived Fifth Right “his Amendment to be from protected punishments conviction and multiple for the same conduct” because he was convicted and sen- tenced both for unlawful and narcotics racketeer- ing. the appellate Before the defendant dropped this constitutional characterization of the issue and simply argued delivery convictions were lesser- racketeering included offenses of the narcotics conviction charging and, the so-called approach instrument they Here, should be vacated. accordingly, the State argues that charging instrument subverts approach legislature’s intent supplement existing drug trafficking sanctions. essentially
This issue is still a constitutional issue. (see Const., prohibition against double U.S. jeopardy Y, XTV; 1970, I, 10; § amends. Ill. Const. art. see also 720 (West 2002)) safeguards against multiple ILCS 5/3 —4 (see North Carolina v. for the punishments same offense
565 656, 664-65, Pearce, 711, 717, L. Ed. 2d 89 S. 395 U.S. (1969); Totten, 124, Ill. 2d Ct. (1987)) consequently prosecution bars 130-31 (see Brown and a lesser-included offense both an offense S. Ct. Ohio, 432 U.S. 53 L. Ed. *9 913, (1977); Ill. 3d 920 People Washington, App. v. 272 551, (1995); v. 66 Ill. 2d 566 generally People King, see (1977)). However, Though we decline to reach this issue. parties dispute charging instru application ment approach, party squarely neither has addressed Additionally, in not jeopardy appeal. double this we will consider a constitutional issue if we can decide the case grounds. on other See v. Elec Bonaguro County Officers Board, 391, tion (1994); 158 Ill. 2d 396 In re Estate of (1963) (“It Ersch, 572, 29 Ill. 2d 576-77 is the established rule of this court that a constitutional not question will be considered if the can decided doing case be without so”). 1401,
To obtain relief under section the defendant 2— affirmatively “must set forth factual specific allegations (1) supporting each of the following elements: the exist (2) a claim; ence of meritorious diligence defense or due in presenting this or claim to in defense the circuit court (3) original action; diligence filing due in the sec Airoom, tion petition Inc., 2—1401 for relief.” Smith v. 209, (1986); 114 Ill. 2d 220-21 Hoey, accord v. 124 Kaput (1988). 370, Ill. is, 2d 378 That in order relief to obtain 1401, under section the defendant must show both a 2— meritorious defense to the him and charges against due in diligence presenting it.
A meritorious defense under section 2—1401 involves fact, 461; errors of not law. See 192 Ill. 2d at see Haynes, (1956) 477, also Burns v. 9 Ill. 2d People, (noting that a section 72 motion the purpose “is available for errors at as correcting law” such ineffective assistance counsel). As we have stated: judg
“A
relief from a final
petition
section 2—1401
ment
is the forum a criminal case which to correct all
cause,
occurring
prosecution
errors of fact
of a
petitioner
judgment
unknown to the
and court at the time
entered, which,
known,
if
prevented
then
would have
A
petition,
[Citations.]
its rendition.
however,
designed
provide
general
is ‘not
a
of all
review
”
appeal.’ Haynes,
trial errors nor to substitute for direct
Berland,
quoting People
from the right sixth but assistance counsel in collateral a mat postconviction proceedings is Owens, legislative grace. 351, ter of v. 139 Ill. 2d People (1988). (1990); Porter, 64, 364 v. 122 Ill. 2d A People may a constitutional claim properly assert (see postconviction of ineffective assistance of counsel (1993)) Davis, v. 156 Ill. 2d People because only the level of postconviction petitioner guaranteed Act. provided by Hearing assistance the Post-Conviction Flores, (1992); also See 153 Ill. 2d see (1992) (postconviction 149 Ill. 2d People Wright, guaranteed are a “reasonable” level of as petitioners 651(c). sistance); Ill. 2d R. rational, plays
“This distinction is
because trial counsel
post-conviction proceedings.
different role than counsel in
trial,
protect
[Citation.] At
counsel acts as a shield to
*11
being
court’
the State and
defendants from
‘haled into
stripped
presumption
[Citation.]
of their
of innocence.
Post-
however,
already
stripped
petitioners,
conviction
have
been
innocence,
presumption
of the
generally
and have
failed
***
to obtain relief on
review of their convictions.
represent
Counsel are
post-conviction petition
ers,
protect
prosecutorial
not to
them from the
forces of
State,
shape
but to
their complaints
proper
into the
legal
present
form and to
complaints
those
to the court.”
Owens,
The defendant here a postconviction is not petitioner, but instead a section petitioner. 2—1401 Section 2—1401 does not specify any assistance, level of court erroneously applied the Strickland standard to the defendant’s claim that his section ineffective. Assuming the defendant was entitled to the same level of assistance on his section 2—1401 peti tion as on a postconviction the defendant did not receive unreasonable assistance. The defendant’s at torney was not unreasonable a puta raise tive error a proceeding only where fact errors are Landwer, cognizable. See 166 Ill. 2d (1995) (“Whether a charged offense an encompasses law”). included offense is a matter of The appellate court erred in vacating the defendant’s unlawful convictions sentences.
In cross-appeal, the defendant raises one issue: whether the appellate court erred in refusing grant relief on his claim that an extended-term sentence for improper.
The Unified Code of Corrections allows an extended term sentence only “for the class most serious of fense of which the offender was convicted.” Ill. Rev. Stat. 8—2(a), ch. par. currently codified as 1005— 8—2(a) (West 2002). 730 ILCS At sentencing, 5/5 — stood convicted of two counts of unlawful delivery, felonies, X both Class and one count of narcotics racketeering, Thus, a Class felony. the defendant could have an only received extended-term sentence on the delivery convictions. The “if State concedes that
569 the Class court decision on appellate the Court reverses highest racketeering is not the offenses, X narcotics for which Defendant class of offenses statutory convicted.” the vacating erred in the court appellate
Because in convictions, erred it also delivery unlawful defendant’s racketeer the sentence on narcotics refusing to vacate Arna, 168 ing conviction. See (“A (1995) to a statu which does conform sentence void”). our In the tory is exercise requirement 15-year a on authority, impose sentence supervisory we (see conviction defendant’s 8—1(a)(4) (West 2002)), run concur ILCS 5/5 — 30-year on the convic rently with his sentences (“On 615(b)(4) Ill. 2d the review appeal R. tions. See *** by the ing may punishment imposed reduce the court court”). trial
CONCLUSION discussed, the reasons have we reverse For that we and the judg- affirm judgment appellate ment of the circuit court as modified. reversed; court judgment
Appellate court judgment circuit affirmed as modified. concurring in and dis- FREEMAN, part JUSTICE senting part: today court erred
The court holds that defen- standard to familiar Strickland applying attorney that his rendered dant’s claim agree While I that him assistance of counsel. ineffective analysis these inapplicable Strickland treatment of circumstances, disagree I the court’s with result, join and, contention as a cannot opinion. of its portion I began proceedings by Defendant these collateral fil- ing a pro se relief. In for alleged distinct two reasons claiming ineffective assistance of counsel. Defendant as- attorney serted he met with his trial after sentenc- receiving ing expressed 30-year a “shock” over inquired why sentence and that he he had received 30-year felony. sentence on Class Defendant al- attorney leged that he asked his to file a motion to reduce sentence and that no action ever taken request. alleged Defendant further that he spoke then with his *13 sentencing her
asked to address the issue. Defendant al- leged appellate erroneously attorney replied that his previous attorney’s his that to to failure move reduce sentence rendered the issue waived. Defendant further claimed that neither attorney trial his nor his mentioned] “ever that the two unlawful deliveries were lesser included offenses of narcotic racketeering, jeopardy.” as such barred were double petition Defendant attached to an affidavit his and sought proceed pauper of in leave court proceedings. In a of memorandum law filed with the argued appellate attorney defendant that his recognized sentencing should have that defendant’s scheme was erroneous on its face: “The unlawful delivery charges of are included offenses narcotic *** reviewing may and a court an review properly preserved not an issue fecting if it error af- involves right of substantial the defendant.” transcripts The reveal that the circuit court was allegations and, concerned about defendant’s se appointed end, that counsel for defendant. Counsel thereafter filed an “Amended to Reduce Petition Sen- reveals, however, The record that defendant was tence.” appointed he his counsel and that moved dissatisfied with pro se.2 proceed allowed to her and be to have dismissed denied relief eventually that court denied motion The petition. on defendant’s court the circuit argued appeal,
On that his convic- petition.3 his He claimed denying erred that all of clause and jeopardy tions violated the double in the including col- the one attorneys, infirm constitutionally had proceeding, lateral rendered The the issue. State raised by failing raise assistance judg- of the circuit court’s arguments support three The that defendant’s argued ment. first State argued The further petition untimely. 2—1401 State Strickland, ineffective for that, under was not counsel of convictions on argue either the vacatur failing to reduce the lesser-included offenses or to move sentence. opinion by noting began its contention, ap
the State’s first time its raised brief, that defendant’s section pellate at 986. The untimely, App. was waived. 331 appellate court then noted that defendant’s contentions claims at the concerned ineffective assistance counsel sentencing, appeal, petition stages case raised attorneys sentencing none of certain because App. issues. 331 Ill. 3d at 986. court did consider however, “the inef any arguments, because these for review in a appropriate fectiveness of counsel is not *14 at App. section 2—1401.” 331 Ill. 3d proceeding under court, however, agreed with appellate 986-87. The attorney was ineffec- that his section counsel, appointed 2In his motion for dismissal of written appointed it him that counsel defendant stated that was clear to his time, desire, understanding “did not or cause to have added.) adequately (Emphasis specifi him. Defendant represent” cally filed in took issue the amended that counsel with behalf. represented by appeal. on
3Defendant a different 572 to
tive raise lesser-included offense issue. 331 Ill. at App. 3d
In today’s opinion, explains this court that the appel court correctly late refused to consider the claims raised in the section 2—1401 petition regarding ineffective assistance of trial and counsel. points that out such claims are more properly proceed raised ings under our Hearing Post-Conviction Act. 207 Ill. at 2d 564-66. I agree. The Act is the proper vehicle which to raise collateral challenges constitutional to a conviction. note, however, The court goes to that court erred in that holding defendant received ineffective assistance of counsel from his section 2—1401 attorney.
As matter, an initial it must be remembered that our (725 Post-Conviction Act Hearing seq. ILCS et 5/122—1 (West 2002)) developed in response to criticisms regarding procedures the collateral Il available under law to prisoners linois who wished attack their convic (1968). Slaughter, tions. See Ill. 2d As explained in we Slaughter, by “[t]he available methods judgment which a of conviction could be attacked in Il of error, linois were writ habeas corpus, coram nobis. Supreme troubled, Court of United States was because no matter prisoner pursued, which method a he always appeared to be met a claim he should pursued a have different remedy.” Slaughter, 39 Ill. out, at 284. court correctly As the points under the Post- Hearing Conviction Act counsel are repre “ postconviction petitioners sent ‘not protect them prosecutorial State, from the shape forces of the but to complaints proper present their into the and to legal form ” added.) complaints (Emphasis those the court.’ Owens, Ill. 2d at Ill. 2d quoting People (1990). However, recognized this court has also “the same lack of legal knowledge which causes prisoner inadequate to draft an post-conviction petition *15 of col wrong the method selecting in his might result result, salutary A laterally attacking his conviction. Hear intent the Post-Conviction consistent with the of *** court, upon if the circuit achieved ing Act would be labeled, and however finding pro petition, se that the drawn, alleged of inartfully violations however in cognizable post-conviction rights petitioner’s it as all treat thereafter, purposes, for would proceeding, 53 Ill. 2d Twomey, ex rel. Palmer v. such.” (1973). of in case My the this reveals transcripts review treat attempted the circuit court to in confor- postconviction pleading 2—1401 as a petition Twomey. My conclu- mity with this court’s directive are by several facts which established supported sion First, by pro the record. se claims were couched in terms of a constitutional violation —ineffec- counsel, trial which tive assistance both and predicate necessary would as the constitutional for serve Second, the judge an action under the Act. trial pleading appointed counsel to defendant because she believed that enough defendant’s claims of error were substantial legal I note that section professional warrant assistance. counsel, the provide appointment does Third, the Act does. trial referred to the judge but the Act on her comments in by several occasions evinced far as cite transcripts, going the one instance so the under the Act.4 necessary standard to survive dismissal facts demonstrate to me that together, Taken these by help having circuit an attempted take defen- appointed attorney shape over case form. complaints proper dant’s into however, In the court dismisses appeal, this counsel, response 4I point would out that agreed point. with the court on by Twomey stating any argument
relevance based Twomey would fail because se, “although initial [defendant’s] amended subject appeal, which is of this an prepared clearly brought under section *16 2—1401.” Ill. 2d at 566. according Thus, to the because defendant received counsel, the need benefit of we not treat the section petition postconviction petition. 2—1401 as a Having presence concluded that the of counsel in this unnecessary viewing case renders our sec defendant’s petition postconviction petition, tion 2—1401 as a the goes appellate court on to whether discuss the court erred holding in that defendant received ineffective assistance proceedings. of counsel the at The court correctly petitioner seeking pursuant *17 offense in her to not include lesser-included issue petition amended section 2—1401 because such an asser law, of is one tion error of and section constitutes only cognizable. where fact errors are proceeding response my Ill. 2d at 568. Such a misses the mark I defen view. believe rendered no assistance to counsel dant when she failed to that defendant’s initial recognize Counsel pro petition se contained two bases for relief. into the “shaping] complaints [defendant’s] failed *** complaints form and those proper presenting] 364-65) Owens, 2d at (People to the court” 139 Ill. to raise defendant’s lesser-included offense is
neglecting Hear sue as a claim under the Post-Conviction separate the ineffective as ing by neglecting Act and to redraft the Act as well. sistance of counsel claims under not counsel to Ironically, appointed had circuit court court, as defendant, this as well obligated would have been to treat pro se defendant’s (see petition postconviction as a 484) Twomey, and, such, 53 Ill. 2d at would be examine, required in the of determining course whether defendant’s trial counsel were ineffective, the merits of defendant’s lesser-included of argument. fenses circumstances, Under these I cannot join in the court’s conclusion that counsel dur these ing collateral proceedings provided “reasonable” representation her when so-called “reasonable” actions are what prevents this addressing court from the sum and substance of se allegations.
I am disturbed my colleagues are say content that counsel’s representation not unreasonable that, this, these facts and of because we need concern ourselves with the substance of defendant’s claims. I posit would that an who makes such a fundamental mistake has not provided any level as of client, sistance or her let alone a “reasonable” view, level In my assistance. appointed counsel should recognized have that defendant’s claims ineffective as sistance of counsel had to be redrafted in the form of a petition under the Post-Conviction Hearing Act. More over, any determination regarding the reasonableness counsel’s actions require would review claim, i.e., merits of whether his contention regarding the lesser-included offenses was meritorious. If meritorious, that claim is not then counsel could not be faulted for failing to raise or redraft a nonmeritorious postconviction claim in Therefore, disagree form. I with decision, the court’s “declin[ing] to reach” the issue regarding illegal whether of lesser-included fense of racketeering. 207 Ill. 2d at
Today’s is decision notable in that defendant is told that he the wrong chose legal forum to raise his chal- lenge, but that the lawyer was reasonable for ignoring cognizable under section it was not the claim because lawyer Ironically, the same whom this is 2—1401. presciently characterized defendant, in the circuit By understanding having its ac- of this case. had no as suspicions. today, the confirms defendant’s tions court II cross-appeal is neces- resolution The by sarily impacted reached on lesser- the conclusion that if the concedes offenses issue. State included illegal delivery reinstated, then for are convictions rack- for narcotics defendant’s extended-term sentence join eteering above, I I do not cannot stand. As stated I that because the court’s decision issue believe first of defendant’s that this court must assess the merits lesser-included offenses issue order resolve whether representa- provided “unreasonable” counsel proceeding. does not do tion this collateral court issue, the and, as a result of its treatment of that illegal delivery charges. reinstates accept join concession, fact, I the State’s Given that only portion opinion which reduces the in that sentence.
Ill
attempted
case,
In
to raise several
illegal
challenges
for
sentences
constitutional
racketeering. Unfortunately
delivery and narcotics
erroneously
wrong legal
defendant, he
utilized the
vehicle
challenges. Notwithstanding to raise these
circuit
appointment
are
counsel,
court’s
defendant’s claims
shape
attorney failed to
still out of our reach because his
proper
form and that failure
his contentions into the
my colleagues.
This conclu-
is deemed “reasonable”
assessing
defen-
first
whether
sion
reached without
challenges have merit. This is
dant’s constitutional
justices
troubling
two
believe
since
*19
single
rule,
convictionsviolated the
act
which
jeopardy
has
in the
its basis
double
clause
the United
People King,
States Constitution. See
CHIEF JUSTICE McMORROW in this partial concurrence and dissent.
(No. 95593. Appellant, L.D. SMITH, RANDELL IL- CENTRAL Appellees. LINOIS REGIONAL et al., AIRPORT Opinion November filed notes that a relief Hearing guaranteed only to the Post-Conviction Act is provided Act, level of assistance under the which this court has is a ruled “reasonable” level of assistance. 207 points Ill. 2d at court out that defendant here is proceeding proceeding Act, not under the rather but is pursuant to 2—1401. The court states: any assistance, 2—1401 of specify “Section does not level appellate erroneously applied and the court the Strickland to the claim standard defendant’s that his section 2—1401 attorney Assuming was ineffective. that the defendant entitled to the same of level assistance on his section postconviction petition as on a did defendant not receive unreasonable assistance. was not unreasonable for to putative legal proceeding raise a error in a only where fact cognizable.” errors are Ill. 2d at 568. agree applying I in court was incorrect analysis However, a Strickland claim. I agree cannot that defendant received as- “reasonable” sistance counsel under these facts. pro peti- The claims asserted his se clearly postconvic- tion form the basis of relief under a as clearly recognized The trial court proceeding. tion to aid defendant appoint counsel sought much ruling Under the court’s his claims. presentation off however, have been better today, defendant would then each of counsel because appointment without obligated to treat every at level would have been filed under petition allegations postconviction se claims of Act. contained petition Defendant’s counsel, trial and ineffective assistance of both (i) of the failure to raise the lesser-included on based (ii) reduction of the issue and the failure seek fenses Today’s does address 30-year opinion sentence. repre her whether counsel was reasonable to redraft these obvious neglected sentation she where form, i.e., proper contentions into the constitutional Hearing Act. In my under the Post-Conviction view, any must turn assessment reasonableness Instead, whether merit either any argument. there the court states that it was not unreasonable for counsel