Appeal from the Circuit Court of Kane County. No. 84-CF-664. Honorable Melvin E. Dunn, Judge, Presiding.
Released for Publication June 15, 1994.
McLAREN, Geiger, PECCARELLI
The opinion of the court was delivered by: Mclaren
JUSTICE McLAREN delivered the opinion of the court:
The petitioner, Chester Lester, appeals from an order of the circuit court of Kane County granting the State's motion to dismiss his petition for post-conviction relief without an evidentiary hearing. We reverse and remand.
The petitioner was charged by indictment with three counts of first-degree murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), (a)(2) (now codified, as amended, at 720 ILCS 5/9-1(a)(1), (a)(2) (West 1992))), in connection with the September 29, 1984, death of Jared Powell, the four-year-old son of the petitioner's girlfriend. The petitioner was convicted following a jury trial and sentenced to 40 years in prison. His conviction was affirmed on direct appeal by this court. People v. Lester (1986), 145 Ill. App. 3d 720, 99 Ill. Dec. 543, 495 N.E.2d 1278.
On May 3, 1989, the petitioner filed a pro se petition for post-conviction relief pursuant to the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1989, ch. 38, par. 122-1 (now codified, as amended, at 725 ILCS 5/122-1 (West 1992))), claiming that he received constitutionally ineffective assistance of counsel at trial and in his direct appeal. In support of his claims, he alleged that: (1) his attorney failed to call as witnesses the mother and grandmother of Jared Powell to testify that Jared was not afraid of the petitioner but liked him; (2) his attorney refused to let him testify at trial; (3) his attorney failed to call as a witness a doctor to rebut expert medical testimony offered by the State; and (4) his attorney failed to call to the court's attention that a juror was crying during trial. The petitioner alleged ineffective assistance by his appellate counsel for not raising the issue of ineffective assistance of trial counsel in his direct appeal. The petitioner also claimed that his constitutional rights were violated when an assistant State's Attorney interrogated him on the pretense of being his lawyer.
The petitioner supported his petition with his personal affidavit in which he declared that he informed his attorney prior to trial of the availability of Jared Powell's mother and grandmother as favorable witnesses and the availability of a medical expert; none was called to testify. The petitioner also declared that he advised his attorney prior to trial of his desire to testify in his own behalf, but he was rebuffed by his attorney, who told him that his testimony would hurt his appeal.
The affidavit also alleged that an assistant State's Attorney questioned the petitioner on September 28, 1984, and led him to believe that the State's Attorney was his court-appointed counsel. Finally, the petitioner declared that he asked his appellate attorney to raise "certain issues" on appeal, but the requests were ignored.
The petitioner also appended to his petition a copy of a letter from his appellate counsel concerning medical testimony at trial and a copy of a police report which included a statement by Jared Powell's mother that her son was not afraid of the petitioner.
The petitioner notified the trial court on December 5, 1990, that he had heard nothing from the court as to the status of his petition, which he filed on May 3, 1989. The petition was docketed on December 10, 1990. Under the Act, the trial court must, within 90 days of the filing and docketing of a petition, examine the petition and either dismiss the petition as frivolous or patently without merit, or order the petition docketed for further consideration. (Ill. Rev. Stat. 1989, ch. 38, par. 122-2.1 (now codified, as amended, at 725 ILCS 5/122-2.1 (West 1992)).) The trial court did not dismiss the petition as frivolous or patently without merit. The court set the matter for further proceedings. The court appointed counsel for the petitioner on July 10, 1992.
On February 22, 1993, the State filed a motion to dismiss the petitioner's petition, arguing that the claims therein were waived or res judicata by his trial and direct appeal and that his trial and appellate counsel did not render constitutionally ineffective assistance to the petitioner. At a hearing on September 25, 1992, the petitioner's attorney indicated that he met with the petitioner at Pontiac Correctional Center the day before the hearing to discuss the petition and proposed amendments to the document. Also on February 25, 1993, the petitioner's counsel filed an amended post-conviction petition, raising the same claims as in the original pro se petition.
At the hearing, which the parties agreed would include no testimony but only a Discussion of the applicable law, the State argued that the petitioner's allegations concerning the juror who was seen crying and allegedly improper action by an assistant State's Attorney were waived or subject to res judicata because they were not mentioned in the petitioner's motion for a new trial or in his direct appeal.
The State argued that even if the claim of ineffective counsel was not waived, it was unavailing because the decision of whether the petitioner should testify at trial was tactical, and tactical decisions by attorneys are not subject to claims of ineffective assistance. The State also claimed that allegations that certain witnesses were available to testify for the petitioner ...