THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JIMMY RAY PITSONBARGER, Appellant
No. 89368
Supreme Court of Illinois
May 23, 2002
201 Ill. 2d 444 | 775 N.E.2d 963 | 267 Ill. Dec. 227
HARRISON, C.J., and KILBRIDE, J., dissenting.
James E. Ryan, Attorney General, of Springfield (Joel D. Bertocchi, Solicitor General, and William L. Browers
JUSTICE GARMAN delivered the opinion of the court:
Petitioner, Jimmy Ray Pitsonbarger, appeals from orders of the circuit court of Peoria County dismissing 34 of the 35 claims raised in his second post-conviction petition and denying the sole remaining claim after an evidentiary hearing. Because petitioner was sentenced to death for the underlying convictions, his appeal lies directly to this court.
I. BACKGROUND
This court has previously described the facts underlying petitioner‘s conviction and sentencing in our opinion on his direct appeal. See People v. Pitsonbarger, 142 Ill. 2d 353 (1990). Thus, we will summarize here only the proceedings that have occurred since his conviction.
In 1988, petitioner was convicted in a bench trial of the murders of Claude and Alta Brown. The death penalty hearing was held before a jury, which found the petitioner eligible for the death penalty based on the presence of two aggravating factors, and further found that no mitigating factors sufficient to preclude imposition of the death penalty were present. The circuit court sentenced petitioner to death. On direct appeal, this court addressed 14 separate claims of error, affirmed two convictions for intentional murder, vacated four convictions for felony murder, and affirmed the sentence of death. Pitsonbarger, 142 Ill. 2d 353. Petitioner‘s petition for a writ of certiorari to the United States Supreme Court was denied. Pitsonbarger v. Illinois, 502 U.S. 871, 116 L. Ed. 2d 163, 112 S. Ct. 204 (1991).
In April 1992, petitioner filed a post-conviction peti-
Petitioner filed a petition for habeas corpus relief in March 1995, in the United States District Court for the Central District of Illinois, raising 11 claims. The district court issued an unpublished decision on October 5, 1995, denying habeas relief. On appeal, the United States Court of Appeals for the Seventh Circuit affirmed the district court‘s decision. Pitsonbarger v. Gramley, 103 F.3d 1293 (7th Cir. 1997). That judgment was vacated by the United States Supreme Court in Pitsonbarger v. Gramley, 522 U.S. 802, 139 L. Ed. 2d 6, 118 S. Ct. 37 (1997) (vacating and remanding for reconsideration in light of Lindh v. Murphy, 521 U.S. 320, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997)). The court of appeals thereafter entered a revised decision, again affirming the denial of habeas relief. Pitsonbarger v. Gramley, 141 F.3d 728 (7th Cir. 1998). The Supreme Court denied petitioner‘s petition for a writ of certiorari. Pitsonbarger v. Gramley, 525 U.S. 984, 142 L. Ed. 2d 402, 119 S. Ct. 448 (1998).
On February 28, 1996, while his appeal was pending
At the evidentiary hearing, the parties stipulated that prior to and during petitioner‘s bench trial he was taking psychotropic medication, specifically 10 milligrams of Librium three times a day. Petitioner argued that this fact alone is sufficient to put the burden on the State to prove that he had been fit to stand trial in 1988. Further, petitioner argued that he should be given a new trial because a retrospective fitness hearing more than a decade later could not meet due process standards. Other
The State argued that the mere fact petitioner was receiving medication is not sufficient to require a new trial. Rather, he must demonstrate that trial counsel was ineffective for failing to request a fitness hearing and appellate counsel was ineffective for failing to raise the issue on direct appeal. According to the State, petitioner could prevail on these claims only by demonstrating he would have been found unfit to stand trial if he had been given a fitness hearing in 1988, and he had failed to make the required showing. When the circuit court again denied the State‘s request to dismiss this claim, the State called two witnesses.
Robert E. Chapman, M.D., a psychiatrist who interviewed petitioner in 1988 to evaluate his fitness to stand trial and the applicability of insanity or intoxication as defenses, testified that he was aware during his interview with petitioner that he had been receiving three 10-milligram doses of Librium per day. Chapman described Librium as “an anti-anxiety medication” and “a minor tranquilizer.” During the interview, Chapman found petitioner “oriented, alert, cooperative, [and] inquisitive.” Petitioner “showed no evidence of psychosis or other symptoms of a severe mental disease or mental disorder.” Further, he showed no evidence of drug side effects such as slurring of speech or staggering or other gait disturbance. Petitioner did not report insomnia or other sleep disturbances. Chapman found petitioner‘s behavior appropriate and his thought processes intact. Asked for his opinion, within a reasonable degree of medical certainty, of petitioner‘s fitness to stand trial in 1988, Chapman testified that petitioner “was fit.” When specifically asked if that opinion took into account that petitioner was taking Librium at the time, Chapman responded, “Yes.”
Phillip Jobe, Ph.D., a professor of pharmacology at the University of Illinois College of Medicine in Peoria, explained that Librium is used primarily for treatment of anxiety as well as to treat insomnia. Jobe was asked to describe, to a reasonable degree of scientific certainty, the effect on a 24- to 25-year-old male, weighing approximately 165 pounds, of three 10-milligram doses of Librium per day. Jobe stated that such a dosage would not impair that person‘s ability to understand the nature of charges against him or to understand legal proceedings. Further, it would not impair the person‘s abilities to communicate with counsel, to observe, recollect, or relate occurrences, or to control his motor processes, including facial expressions. Jobe was also asked how long Librium would remain in the system of a 165-pound male after the medication was discontinued. Jobe explained that the drug, including its metabolites, would “essentially [be] gone from most people in ten days to 15 days” and that the drug would be “active” for a much shorter period.
Jobe acknowledged on cross-examination that Librium‘s side effects include confusion, drowsiness, fainting, and nausea, and “[i]f the dose were sufficiently high,” Librium could cause an impairment in decisionmaking
Following the testimony of these two witnesses, the court took judicial notice of the testimony of Mortimer Beck, M.D., in the transcript of petitioner‘s sentencing hearing. Beck, who conducted a psychiatric evaluation of petitioner prior to Chapman‘s evaluation, is the doctor who prescribed the Librium. Petitioner began receiving the medication the day after his interview with Beck. Thus, Beck‘s evaluation of petitioner occurred prior to his receiving any medication. Beck found petitioner fit to stand trial.
The record before the circuit court as it considered the testimony of the State‘s witnesses documented the following sequence of events regarding petitioner‘s treatment with Librium: April 21, 1988, evaluation by Dr. Beck, who found petitioner fit to stand trial and prescribed the medication; April 22, 1988, medication began; June 13, 1988, evaluation by Dr. Chapman, who also found petitioner fit to stand trial; June 22-23, 1988, bench trial; June 29, 1988, medication terminated because petitioner refused further doses; July 4, 1988, petitioner attempted suicide by ingesting caustic cleaning fluid; September 17, 1988, sentencing hearing began. The court also took judicial notice of records indicating petitioner‘s age, height, and weight at the time he was taking Librium, which were consistent with the hypothetical questions posed to the witnesses.
Based on this evidence, the circuit court concluded that “[t]here never was a bona fide doubt of the petitioner‘s fitness to stand trial raised at the time of the trial or the sentencing hearing.” The court stated that it would find trial counsel ineffective for failing to request a fit-
In the present appeal, petitioner raises three claims of constitutional error, having abandoned 32 of the 35 claims contained in his second post-conviction petition. First, he argues that his sentencing hearing was unfair because the State improperly used peremptory challenges to excuse jurors who expressed reservations about imposing the death penalty. Second, he claims he was deprived of a fair sentencing hearing because two members of the jury engaged in private deliberations. Third, petitioner asserts that the circuit court erred when, after holding an evidentiary hearing, it rejected his claims of ineffective assistance of trial counsel based on failure to request a fitness hearing and ineffective assistance of appellate counsel based on failure to raise that issue on appeal.
These three issues are before this court for the first time, over 10 years after we affirmed petitioner‘s conviction and sentence on direct appeal. The State urges us to find petitioner‘s entire second post-conviction petition time-barred under
II. ANALYSIS
The Act provides a remedy to a criminal defendant whose federal or state constitutional rights were substantially violated in his original trial or sentencing hearing. People v. Towns, 182 Ill. 2d 491, 502 (1998). In capital cases, post-conviction proceedings are governed by
Because this is a collateral proceeding, rather than an appeal of the underlying judgment, a post-conviction
A trial court‘s dismissal of a post-conviction petition without an evidentiary hearing is reviewed de novo. People v. Coleman, 183 Ill. 2d 366, 389 (1998). Dismissal of a post-conviction petition following an evidentiary hearing is reviewed for manifest error. Coleman, 183 Ill. 2d at 385.
A. Second Post-Conviction Petition
The State argues that any consideration of petitioner‘s second post-conviction petition is barred by
Review of our prior case law suggests a reason for the parties’ oversight—we have been less than crystal clear about whether the cause-and-prejudice test must be applied to the claims raised in a successive post-conviction petition and how the test relates to claimed flaws in the initial post-conviction proceeding. See, e.g., Flores, 153 Ill. 2d at 278-79 (discussing the cause-and-prejudice test “parenthetically“); People v. Szabo, 186 Ill. 2d 19, 23 (1998), quoting Flores, 153 Ill. 2d at 273-74 (successive petition may go forward “only when” proceedings on the initial petition were “‘deficient in some fundamental way,‘” but not applying the cause-and-prejudice test); Wright, 189 Ill. 2d at 12 (same); People v. Jones, 191 Ill. 2d 194, 199 (2000) (stating that Flores “adopted” the cause and prejudice test “as the proper means of identifying the extremely narrow class of cases in which a defendant‘s successive post-conviction petition is entitled to consideration on the merits“); People v. Holman, 191 Ill. 2d 204, 210 (2000) (noting that this court “has previously referred to the cause and prejudice standard as an aid in determining whether a successive post-conviction proceeding may proceed“); People v. Orange, 195 Ill. 2d 437, 449 (2001) (holding that successive petitions may be allowed where proceedings on the initial petition were deficient and noting that the cause-and-prejudice test has been used “as an aid” to determine whether a successive post-conviction petition may proceed).
This case presents the opportunity to clarify two areas of confusion. First, is the cause-and-prejudice test merely an aid that courts may use to determine whether
1. The Cause-and-Prejudice Test
In an initial post-conviction proceeding, the common law doctrines of res judicata and waiver operate to bar the raising of claims that were or could have been adjudicated on direct appeal. Towns, 182 Ill. 2d at 502-03. The doctrine of waiver, however, “is a rule of administrative convenience, not a jurisdictional or absolute bar to procedurally defaulted claims.” People v. Hawkins, 181 Ill. 2d 41, 53 (1998). Exceptions to this common law principle of judicial administration are made in three situations: “where fundamental fairness so requires; where the alleged waiver stems from the incompetence of appellate counsel; or where facts relating to the claim do not appear on the face of the original appellate record.” People v. Mahaffey, 194 Ill. 2d 154, 171 (2000). And although the “fundamental fairness” exception “‘escapes precise definition‘” (Mahaffey, 194 Ill. 2d at 173, quoting People v. Porter, 164 Ill. 2d 400, 408 (1995)), we have long defined the fundamental fairness exception in the context of an initial post-conviction petition in terms of the cause-and-prejudice test (see People v. Owens, 129 Ill. 2d 303, 317 (1989)).
In the context of a successive post-conviction petition, however, the procedural bar of waiver is not merely a principle of judicial administration; it is an express requirement of the statute.
Since Flores, we have at times used less than explicit language when referring to the cause-and-prejudice test, describing the test as “an aid” or otherwise suggesting that its application is not mandatory. We hold today that the cause-and-prejudice test is the analytical tool that is to be used to determine whether fundamental fairness requires that an exception be made to
2. Fundamental Deficiency in the Initial Post-Conviction Proceeding
“Cause,” for purposes of the cause-and-prejudice test, has been defined as “‘some objective factor external to the defense [that] impeded counsel‘s efforts’ to raise the claim” in an earlier proceeding. Flores, 153 Ill. 2d at 279, quoting McCleskey, 499 U.S. at 493, 113 L. Ed. 2d at 544, 111 S. Ct. at 1470, quoting Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 408, 106 S. Ct. 2639, 2645 (1986). We have frequently observed that a fundamental deficiency in the initial post-conviction proceeding may constitute cause for consideration of issues raised in a subsequent petition. Orange, 195 Ill. 2d at 449; People v. Erickson, 183 Ill. 2d 213, 223 (1998); Flores, 153 Ill. 2d at 273-74. On occasion, however, we have said that “only if” the first proceeding was deficient will a successive petition be considered. See, e.g., Wright, 189 Ill. 2d at 12; Szabo, 186 Ill. 2d at 23.
Recently, the United States Supreme Court, whose lead we followed in adopting the cause-and-prejudice test, observed:
“Without attempting an exhaustive catalog of such objective impediments to compliance with a procedural rule [of waiver], we note that a showing that the factual or legal basis for a claim was not reasonably available to counsel *** would constitute cause under this standard.” Strickler v. Greene, 527 U.S. 263, 283 n.24, 144 L. Ed. 2d 286, 303 n.24, 119 S. Ct. 1936, 1949 n.24 (1999), quoting Murray, 477 U.S. at 488, 91 L. Ed. 2d at 408, 106 S. Ct. at 2645, citing Reed v. Ross, 468 U.S. 1, 16, 82 L. Ed. 2d 1, 15, 104 S. Ct. 2901, 2910 (1984).
In Reed, which Strickler cited with favor, the Court said:
“Because of the broad range of potential reasons for an attorney‘s failure to comply with a procedural rule, and the virtually limitless array of contexts in which a procedural default can occur, this Court has not given the term ‘cause’ precise content. *** Underlying the concept of cause, however, is at least the dual notion that, absent exceptional circumstances, a defendant is bound by the tactical decisions of competent counsel.” Reed, 468 U.S. at 13, 82 L. Ed. 2d at 13, 104 S. Ct. at 2909. Further, “[T]he cause requirement may be satisfied under certain circumstances when a procedural failure is not attributable to an intentional decision by counsel made in pursuit of his client‘s interests. And the failure of counsel to raise a constitutional issue reasonably unknown to him is one situation in which the requirement is met.” Reed, 468 U.S. at 14, 82 L. Ed. 2d at 14, 104 S. Ct. at 2909.
The Court held that “where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for failure to raise the claim in accordance with applicable state procedures.” Reed, 486 U.S. at 16, 82 L. Ed. 2d at 15, 104 S. Ct. at 2910. Thus, the Supreme Court has not limited the scope of “cause” to situations in which the earlier habeas corpus proceeding was deficient.
Some of our prior decisions have suggested that, unlike the Supreme Court, we intended to limit the cause
3. Application of the Cause-and-Prejudice Test
Petitioner argues that his first proceeding was fundamentally flawed by counsel‘s abandonment of his case on appeal and that he is, therefore, entitled to consideration of all of the claims raised in his second petition. This is, essentially, an argument that the flaw was so pervasive that it undermined the entire proceed-
Our prior case law does offer some support for applying the “cause” element of the test to the petition as a whole. In People v. Free, 122 Ill. 2d 367, 376 (1988), we discussed several older cases in which the prior post-conviction proceedings had been “virtual nullities” and successive petitions had been allowed. We concluded, however, that because the defendant had already been given “‘one complete opportunity to show a substantial denial of his constitutional rights,‘” his second post-conviction petition was properly dismissed. Free, 122 Ill. 2d at 376-77, quoting People v. Logan, 72 Ill. 2d 358, 370 (1978). See also Whitehead, 169 Ill. 2d at 369 (treating third petition as an amended petition rather than a successive filing “to ensure that defendant obtain[ed] one complete opportunity to show a substantial denial of constitutional rights“).
Petitioner claims that dismissal of his first post-conviction appeal as a result of counsel‘s failure to file a brief denied him “one complete opportunity,” so that all issues raised in his second petition should be considered. Nevertheless, because
In People v. Johnson, 192 Ill. 2d 202, 207 (2000), post-conviction counsel filed a brief with this court, but we found the brief to be “so fundamentally deficient that it
The cause-and-prejudice test, like the test for ineffective assistance of counsel (Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984)), is composed of two elements, both of which must be met in order for the petitioner to prevail. Because the petitioner did not frame his argument in terms of cause and prejudice, we will not attempt an item-by-item assessment of any cause he might have for raising these three specific issues in his second petition. Instead, we will consider whether prejudice would result from application of the waiver provision of section 122-3 to these claims. Prejudice, in this context, would occur if the petitioner were denied consideration of an error that so infected the entire trial that the resulting conviction or sentence violates due process. Flores, 153 Ill. 2d at 279.
a. State‘s Use of Peremptory Challenges
At trial, defense counsel did not object when the State exercised peremptory challenges to excuse certain jurors who expressed mild misgivings about imposing the death penalty. On direct appeal, petitioner questioned whether other jurors were properly excused for cause, an argument that we rejected, but did not question the State‘s
Claims of ineffective assistance of counsel at trial and on direct appeal are evaluated under the standard set forth in Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064, which requires the defendant to demonstrate both deficient performance by counsel and resulting prejudice. Accordingly, if the underlying claim has no merit, no prejudice resulted, and petitioner‘s claims of ineffective assistance of counsel at trial and on direct appeal must fail. See People v. Coleman, 168 Ill. 2d 509, 523 (1995).
We addressed a similar claim in Coleman:
“Defendant argues that the trial court erred in allowing the state to exercise peremptory challenges against certain prospective jurors who expressed some reservations about the death penalty, but whose views did not rise to the level of cause under Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, and its progeny. Under Witherspoon, a prospective juror may not constitutionally be excused for cause based on general objections to the death penalty on moral or religious grounds. Defendant contends that through the use of peremptory challenges the State was able to achieve what it could not achieve through the use of challenges for cause: ‘a jury uncommonly willing to condemn a man to die’ [citation]. On several occasions, this court has held that Witherspoon
does not limit the use of peremptory challenges. [Citations.] Defendant acknowledges these decisions but urges us to reconsider them.” Coleman, 168 Ill. 2d at 548-49.
In the present case, petitioner would have us reconsider our holding in Coleman by reading Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), which prohibits the State from exercising peremptory challenges purely on the basis of the prospective juror‘s race, in conjunction with Witherspoon, as creating a similar limitation on the State‘s power to exercise peremptory challenges on the basis of an opinion or point of view expressed by a prospective juror. Batson does not support such a reading. Batson was decided entirely on equal protection principles (Batson, 476 U.S. at 84 n.4, 90 L. Ed. 2d at 79 n.4, 106 S. Ct. at 1716 n.4 (declining to consider sixth and fourteenth amendment arguments)). Although Batson has been applied to bar other discriminatory practices in jury selection (see J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 144-45, 128 L. Ed. 2d 89, 106-07, 114 S. Ct. 1419, 1429 (1994) (applying Batson doctrine to gender-based peremptory challenges)), it does not apply when peremptory challenges are used to excuse venire members on the basis of an opinion they express during voir dire.
We conclude, as we did in Coleman, that “we find no persuasive reason to depart from this court‘s holdings in this area.” Coleman, 168 Ill. 2d at 549. Because our prior decisions are clear pronouncements on this issue (see Coleman, 168 Ill. 2d at 549, People v. Williams, 161 Ill. 2d 1, 55-56 (1994), People v. Howard, 147 Ill. 2d 103, 136-38 (1991), People v. Stewart, 104 Ill. 2d 463, 481-82 (1984)), not only did no prejudice result from failure to raise this issue, neither trial counsel‘s lack of objection nor appellate counsel‘s decision not to raise the issue on direct appeal constituted deficient performance.
As a result, we hold that consideration of this claim in a successive petition is barred by section 122-3 of the
b. Jury Deliberations
For purposes of determining whether consideration of this issue is warranted, we take as true all well-pleaded facts in the petition and in the supporting affidavits. Caballero, 126 Ill. 2d at 259. During the sentencing phase of petitioner‘s trial, when deliberations were suspended for the night, the trial court instructed the jurors that “you are most certainly not to deliberate any further tonight and not to start deliberations until you‘re back here in your jury room tomorrow morning.” The affidavits reveal that despite this instruction, two jurors who shared a hotel room discussed the case. One of the jurors, who favored imposing the death penalty, “was able to dispel some of [the other juror‘s] anxieties and help [her] sort through the confusion that surrounded [her] decision.” The next morning, after an hour and fifteen minutes of deliberations, the jury announced its verdict sentencing petitioner to death.
Based on affidavits obtained from these two jurors, petitioner argues that he was deprived of his constitutional right to a fair trial. In addition to revealing improper deliberation, the affidavits also reflect some misunderstanding by these jurors about the proceeding. For example, these jurors believed that all members of the jury had to agree on what specific evidence constituted mitigation sufficient to preclude imposing the death penalty; they believed that a vote of 10 to 2 (as the jury then stood) would result in a “hung” jury and that they had to reach a unanimous decision; and the juror who had already decided in favor of the death penalty advised the undecided juror that the defendant had the burden of proving why he should not be sentenced to death.
In general, a jury verdict is not subject to impeachment by the testimony of the jurors. Hobley, 182 Ill. 2d at 457. Thus, a statement by a juror, taken after the jury has rendered a verdict, been polled in open court, and been discharged, is not admissible to impeach the verdict. Hobley, 182 Ill. 2d at 457. Strong public policy considerations underlie this rule, which prevents the admission of a juror‘s affidavit to show the “‘motive, method or process by which the jury reached its verdict.‘” Hobley, 182 Ill. 2d at 457, quoting People v. Holmes, 69 Ill. 2d 507, 511 (1978). As the United States Supreme Court has noted:
“‘[If it is] established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication [then] all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation—to the destruction of all frankness and freedom of discussion and conference.‘” Tanner v. United States, 483 U.S. 107, 119-20, 97 L. Ed. 2d 90, 105-06, 107 S. Ct. 2739, 2747 (1987), quoting McDonald v. Pless, 238 U.S. 264, 267-68, 59 L. Ed. 1300, 1302, 35 S. Ct. 783, 784 (1915).
This rule, preventing admission of juror testimony to impeach the verdict, does not preclude admission of testimony offered as proof of improper extraneous influences on the jury. Hobley, 182 Ill. 2d at 458.
The distinction between “motive, method or process” and “improper extraneous influence” is illustrated in
We did, however, determine that Hobley was entitled to an evidentiary hearing on his claim that jury deliberations were influenced by an incident in the hotel dining room while the jury was sequestered. Hobley, 182 Ill. 2d at 462. Several men who were also dining in the hotel recognized the jury and shouted out remarks about the defendant and their belief that he was guilty and should be executed. The jurors stated that they were “‘upset,‘” “‘scared,‘” and felt their lives threatened. Another juror described those who had heard the remarks as “‘extremely shaken‘” by the incident. Hobley, 182 Ill. 2d at 459.
In the present case, the affidavits offered by petitioner deal exclusively with the content of private jury deliberations, albeit deliberations engaged in improperly and in violation of the court‘s instructions. This information purports to describe the jury‘s “motive, method or process.” It does not present any evidence of an improper extraneous influence and, thus, may not be used to impeach the verdict.
Petitioner would not have been entitled to an evidentiary hearing on this claim even if he had raised it in his
c. Petitioner‘s Fitness to Stand Trial
Petitioner also alleges that the Librium he was taking may have affected his ability to understand and participate in his bench trial and sentencing hearing and may also have affected his appearance and demeanor in the courtroom, influencing how the judge and jury perceived him. Based on the statute that was in effect at the time of his trial (“A defendant who is receiving psychotropic drugs or other medications under medical direction is entitled to a hearing on the issue of his fitness while under medication” (
In addition, petitioner urges this court to retreat from our holding in Mitchell, 189 Ill. 2d at 338, that a post-conviction petitioner “must show a reasonable probability that, if a section 104—21(a) fitness hearing would have been held, he would have been found unfit to stand trial,” and return to the approach of People v. Brandon, 162 Ill. 2d 450, 461 (1994), and its progeny, under which a defendant in his situation would be automatically entitled to a new trial. Finally, petitioner claims that Mitchell, which places the burden on the petitioner to
To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel‘s representation was so deficient as to fall below an objective standard of reasonableness under prevailing professional norms and that the deficient performance so prejudiced defendant as to deny him a fair trial. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. In Mitchell, 189 Ill. 2d at 334, we set out the test for evaluating the prejudice prong of the Strickland test when a post-conviction petitioner claims ineffective assistance of counsel on the basis that he was receiving psychotropic drugs at the time of trial or sentencing, but did not receive the fitness hearing he was entitled to by statute. With regard to the performance of trial counsel, the petitioner must show a “reasonable probability that he would have been found unfit if counsel had requested a fitness hearing.” Mitchell, 189 Ill. 2d at 334. As applied to a claim that appellate counsel failed to raise the issue on direct appeal, the petitioner “must show that the failure to raise the issue was objectively unreasonable and that, but for this failure, a reasonable probability exists that the sentence or conviction would have been reversed.” Mitchell, 189 Ill. 2d at 332.
A defendant is unfit to stand trial “if, because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense.”
Before addressing the merits of this claim, we will respond to petitioner‘s argument that a retrospective fitness hearing cannot remedy the lack of a fitness hearing at the time of his trial. Once a defendant has raised a bona fide doubt as to his fitness to stand trial, the State has the burden of proving him fit. Mitchell, 189 Ill. 2d at 328-29. Petitioner did not raise a bona fide doubt; he merely offered evidence that he had been receiving psychotropic medication at or near the time of trial. See Mitchell, 189 Ill. 2d at 330-31 (stating that the mere ingestion of psychotropic drugs does not create bona fide doubt). Thus, the burden did not shift to the State. The purpose of the evidentiary hearing was not to retrospectively determine petitioner‘s fitness, but to determine the probability that if a fitness hearing had been held in 1988, he would have been found unfit to stand trial. The circuit court understood that the precise question before it was whether the petitioner had met the prejudice prong of the Strickland test and that the burden was, therefore, on petitioner.
The evidence presented at the hearing demonstrates
As to the performance of trial counsel, the circuit court stated: “[M]y understanding of the law is that today the defendant had to show a reasonable probability that if a fitness hearing had been held back in 1988, he would have been found unfit to stand trial, and I think they not only failed to show a reasonable probability, but really have shown no evidence at all that he would have been found unfit.” Regarding the performance of appellate counsel, the circuit court denied petitioner‘s claim, finding the failure to raise the fitness issue “not objectively unreasonable.” Indeed, because the petitioner offered absolutely no evidence in support of his claim, and merely cross-examined the State‘s witnesses, the circuit court could not possibly have found that he had met his burden.
Thus, we affirm the finding of the circuit court that petitioner has failed to establish that trial counsel‘s failure to request a fitness hearing and appellate counsel‘s failure to raise that issue on direct appeal infected his trial and appeal to such a degree that his conviction and sentence violate due process.
Anticipating this result, petitioner urges this court to reject our holding in Mitchell and to return to the previous approach of People v. Brandon, 162 Ill. 2d 450 (1994). In Mitchell, as in the present case, the issue presented was whether counsel had been ineffective for failing to obtain a fitness hearing. We rejected our earlier “automatic reversal” rule that had its origin in Brandon and replaced it with a prejudice inquiry.
The present case illustrates the logic of the rule articulated in Mitchell. Under the old rule, petitioner would have been entitled to a new trial, despite the fact that the evidence adduced at the hearing overwhelmingly demonstrates that his fitness to stand trial was not affected by the medication. In this case, however, application of the Mitchell prejudice inquiry as part of the cause-and-prejudice test protects both the State‘s interest in finality and the petitioner‘s interest in fairness. We, therefore, decline to reconsider our holding in Mitchell.
Petitioner also argues that our recent decisions in Mitchell and Johnson reach contradictory results regarding the burden of proof as to a defendant‘s fitness to stand trial. The two cases are not contradictory. Although both cases involved post-conviction proceedings, they were fundamentally different. In Johnson, the issue presented was not the defendant‘s fitness at the time of trial but, rather, his fitness to proceed with his post-conviction proceedings. We held that on post-conviction, as at trial, the defendant has the initial burden of raising a bona fide doubt as to his fitness. Once a bona fide doubt is created, the burden then shifts to the State to prove him fit. Johnson, 191 Ill. 2d at 269. In the present case, because there is no question of petitioner‘s fitness at this time and because he must demonstrate ineffective assistance of counsel, he carried the burden of proof, a burden he failed to meet.
In sum, we conclude that the circuit court properly
B. Timeliness of Petitioner‘s Second Post-Conviction Petition
Because we have determined that the petitioner‘s claims are barred by section 122—3 of the Act, we need not address the additional question posed by the State, that is, whether the limitations period of section 122—1 applies to bar a successive petition, if the claims that are raised in that petition are otherwise justified by the petitioner‘s demonstration of cause and prejudice.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the circuit court. We direct the clerk of this court to enter an order setting Wednesday, November 13, 2002, as the date on which the sentence of death entered by the circuit court of Peoria County shall be carried out. Petitioner shall be executed in the manner provided by law.
Affirmed.
CHIEF JUSTICE HARRISON, dissenting:
The proceedings which culminated in Pitsonbarger‘s convictions and sentence of death were fatally flawed because they did not comport with the new rules enacted
Even if Pitsonbarger were not entitled to the benefit of the new rules, his sentence of death could not stand. For the reasons set forth in my partial concurrence and partial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law is void and unenforceable because it violates the eighth and fourteenth amendments to the United States Constitution (
JUSTICE KILBRIDE, also dissenting:
I respectfully dissent. For the reasons set forth in my dissents in People v. Hickey, 204 Ill. 2d 585, 636-40 (2001) (Kilbride, J., dissenting), and People v. Simpson, 204 Ill. 2d 536, 581-85 (2001) (Kilbride, J., dissenting), I believe this cause should be remanded for a new trial conducted in compliance with the new rules governing capital cases.
In addition, I disagree with the majority‘s conclusion that defense counsel‘s failure to file any post-conviction brief is not a fundamental deficiency deeming the initial proceeding a nullity. Instead, the majority holds that defendant must satisfy the cause-and-prejudice test on each issue. 205 Ill. 2d at 463. I believe that the pervasive flaws in defendant‘s initial proceeding make this precisely the type of case that demands consideration of the claims made in defendant‘s first petition without application of the cause-and-prejudice test to each individual claim. Contra 205 Ill. 2d at 462-64.
In part, the majority‘s conclusion relies upon People v. Johnson, 192 Ill. 2d 202, 207 (2000). In Johnson, we ordered new briefs when post-conviction counsel failed to comply with our various briefing rules. The majority notes that Johnson did not direct the filing of an amended post-conviction petition. It reasons that the failure to file proper briefs in Johnson did not open the door for a defendant to raise constitutional claims in a second post-conviction petition. Therefore, the majority concludes that in this case the issues in defendant‘s second post-conviction petition are waived unless each satisfies the cause-and-prejudice test.
While I agree that Johnson does not open the door for a defendant to assert new constitutional claims not previously raised in the initial post-conviction petition, the majority overlooks the plain logic of Johnson‘s applicability to issues that were actually asserted in the initial post-conviction petition. In Johnson, we stated that “[a]n attorney who files a brief that is so fundamen-
Thus, I believe the majority opinion ignores a key issue squarely before us: whether an initial proceeding may be so pervasively flawed as to warrant consideration of those same claims in a subsequent petition without subjecting the individual claims to the cause-and-prejudice test. I believe that it can be and that defense counsel‘s complete abandonment of the initial post-conviction proceedings is one such circumstance.
“‘Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have.‘” United States v. Cronic, 466 U.S. 648, 654, 80 L. Ed. 2d 657, 664, 104 S. Ct. 2039, 2044 (1984), quoting W. Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 8 (1956). A defendant is entitled to a reasonable level of assistance of counsel in post-conviction proceedings to assure “one complete opportunity to show a substantial denial of constitutional rights.” People v. Whitehead, 169 Ill. 2d 355, 369 (1996). Moreover, defense counsel‘s performance may be so inadequate that defendant‘s right to assistance of counsel has effectively been denied. Cronic, 466 U.S. at 654 n.11, 80 L. Ed. 2d at 665 n.11, 104 S. Ct. at 2044 n.11. If an accused does not receive actual assistance,
then the constitutional guarantee of the right to effective assistance of counsel is violated. Cronic, 466 U.S. at 654, 80 L. Ed. 2d at 664-65, 104 S. Ct. at 2044.
Although we generally presume defense counsel to be competent, there are instances where prejudice to the accused is so likely that inquiry into the precise effect of counsel‘s conduct cannot be justified. Cronic, 466 U.S. at 658, 80 L. Ed. 2d at 667, 104 S. Ct. at 2046. The most obvious of these is the complete absence of assistance from counsel. See Cronic, 466 U.S. at 659, 80 L. Ed. 2d at 668, 104 S. Ct. at 2047.
Here, counsel‘s abandonment of the first post-conviction proceedings denied defendant even a single complete opportunity to demonstrate his alleged constitutional deprivations and left him without effective assistance of counsel. “‘While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators.‘” Cronic, 466 U.S. at 657, 80 L. Ed. 2d at 667, 104 S. Ct. at 2046, quoting United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir. 1975). The majority‘s conclusion that the flaws in this case were not so pervasive as to obviate the need for the cause-and-prejudice test is the culmination of defendant‘s judicial sacrifice. 205 Ill. 2d at 463.
In view of counsel‘s complete abandonment of the first post-conviction proceedings, I believe that it is improper to apply the cause-and-prejudice test to defendant‘s entire second post-conviction petition. Accordingly, to the extent defendant‘s second post-conviction petition claims mirror those raised in his first post-conviction petition, those repeated claims should be considered without application of the cause-and-prejudice test.
Thus, I respectfully dissent.