SUPREME COURT OF ILLINOIS
544 N.E.2d 276, 129 Ill. 2d 303, 135 Ill. Dec. 780 1989.IL.742
Appeal from the Circuit Court of Kankakee County, the Hon. Wayne P. Dyer, Judge, presiding.
JUSTICE WARD delivered the opinion of the court. JUSTICE CALVO took no part in the consideration or decision of this case.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD
The defendant, Robin Wayne Owens, was convicted of the murder and armed robbery of Arfranzia Hodges following a jury trial in the circuit court of Kankakee County. At the death penalty hearing requested by the State, the same jury determined that one or more of the aggravating factors set forth in section 9-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(b)) existed and that there were no mitigating factors sufficient to preclude the imposition of death (see Ill. Rev. Stat. 1983, ch. 38, par. 9-1(g)). The court then sentenced the defendant to death. This court affirmed the defendant's conviction and sentence on direct appeal (People v. Owens (1984), 102 Ill. 2d 145), and denied his petition for rehearing. The United States Supreme Court subsequently denied the defendant's petition for writ of certiorari. Owens v. Illinois (1984), 469 U.S. 963, 83 L. Ed. 2d 297, 105 S. Ct. 361.
The defendant then filed a petition for post-conviction relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1983, ch. 38, par. 122-1 et seq.) alleging, inter alia, that he was deprived of his right to the effective assistance of counsel at his sentencing hearing and that the Illinois death penalty statute is unconstitutional. The trial court dismissed the petition without an evidentiary hearing, concluding that the issues the defendant raised were barred from further review by the doctrines of waiver and res judicata. The court also observed that the conclusory allegations made in the petition did not warrant an evidentiary hearing. The defendant's appeal from this dismissal was transferred to this court for direct review, pursuant to Supreme Court Rule 651 (107 Ill. 2d R. 651).
The issue raised on this appeal is whether the trial court erred in dismissing the defendant's post-conviction petition without an evidentiary hearing. The Post-Conviction Hearing Act provides a remedy to criminal defendants who claim that substantial violations of constitutional rights occurred in their trial. (People v. Silagy (1987), 116 Ill. 2d 357.) A post-conviction proceeding is not an appeal per se, but a collateral attack upon a final judgment (People v. James (1986), 111 Ill. 2d 283, 290), and the scope of post-conviction review is limited to issues which have not been, and could not have been, previously adjudicated (People v. Gaines (1984), 105 Ill. 2d 79). A defendant is not entitled to an evidentiary hearing as a matter of right. A hearing is required only when a defendant makes a substantial showing that his constitutional rights were violated and the record or accompanying affidavits support the allegations in the petition. People v. Silagy (1987), 116 Ill. 2d 357, 365.
The defendant first claims that he is entitled to an evidentiary hearing to determine whether he was deprived of his sixth amendment right to the effective assistance of counsel at the sentencing stage of his trial. The defendant argues that his trial counsel was ineffective for failing to call certain witnesses to present mitigation testimony at the second stage of his death penalty hearing. He argues that these witnesses would have provided crucial testimony regarding his personal background which may have influenced one or more jurors to spare him from the death penalty.
The State argues that the defendant has waived this issue by failing to raise it on direct appeal. Generally, the issue of a trial counsel's competence is waived where the defendant's appellate counsel fails to raise the issue on direct appeal. The waiver rule is relaxed, however, where the facts relating to the issue of incompetency do not appear on the face of the record. (See People v. Gaines (1984), 105 Ill. 2d 79, 91.) Here, the trial record reveals that the defendant's trial counsel did not present mitigation testimony relating to the defendant's personal background to the sentencing jury. As the record does not show that the mitigation evidence which the defendant now presents was on the face of the record and available to defendant's counsel on direct appeal, we will consider the merits of the defendant's ineffective-assistance claim.
In Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2055, the Supreme Court formulated a two-part test for evaluating whether a claim of ineffective assistance of counsel rises to the level of a constitutional deprivation. The defendant must first demonstrate that counsel's performance was deficient. Courts presume that counsel's performance fell within the wide range of professionally competent assistance. To overcome this presumption, the defendant must prove that his counsel's representation fell below an objective standard of reasonableness. (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) A defendant must also prove that his counsel's deficient performance substantially prejudiced his defense. To demonstrate prejudice, a defendant must show a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
The defendant here claims that his trial counsel was incompetent because he failed to offer what would have been the mitigating testimony of his father, his girlfriend and his girlfriend's mother to the sentencing jury. The defendant cites Kubat v. Thieret (N.D. Ill. 1988), 679 F. Supp. 788, in support of this claim. The Kubat decision, however, is factually distinguishable from this case. In Kubat, the defendant, before trial, gave his attorney the names of 15 witnesses who were willing to testify favorably regarding his character. These witnesses were not family members, whose testimony might be discounted, but neighbors and co-workers who were well-respected citizens in their communities. These witnesses would have testified that they admired Kubat and did not believe he was capable of murder, and their testimony posed no risk of exposing the defendant to damaging rebuttal evidence. Instead of presenting mitigating evidence to the sentencing jury, Kubat's counsel simply made an unpersuasive plea to the jurors religious beliefs in closing argument.
The mitigation testimony that the defendant claims was erroneously omitted here was much less favorable than that at issue in Kubat. Here, it was 3, rather than 15, witnesses who were available to testify on the defendant's behalf. The first prospective witness was the defendant's father, Lucious Owens. Mr. Owens submitted an affidavit in which he stated that he was divorced from the defendant's mother when the defendant was four years old. The affiant also stated that six years later, he received "information" that his son was abused by his stepfather and neglected by both his mother and stepfather. The affidavit contains no additional details regarding the nature of this alleged abuse and neglect. The affiant also stated that he was given custody of his son when the defendant was 10 years old and that, at some later unspecified date, the defendant worked in the affiant's private janitorial business.
We cannot conclude that defendant's trial counsel was ineffective for failing to call the defendant's father to testify at the capital sentencing hearing. It appears from the affidavit that the father had no contact with his son between the ages of 4 and 10, and does not set out any circumstance or qualities of character of the defendant between the age of 10 and the time of the murder that would mitigate. The only information this witness could have offered, that the jury did not otherwise receive, related to abuse and neglect which the defendant's mother and stepfather allegedly inflicted upon the defendant. The affidavit reveals, however, that the defendant's father had no personal knowledge of that abuse and neglect, but relied only upon hearsay information received from an unidentified source. Finally, the defendant ...