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06/02/94 PEOPLE STATE ILLINOIS v. SCOTT M. SEABERG

June 2, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
SCOTT M. SEABERG, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 89-CF-2920. Honorable Edward W. Kowal, Judge, Presiding.

Rehearing Denied July 6, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Bowman, Doyle, Colwell

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

This is a direct appeal from a final order of the circuit court of Du Page County entered October 19, 1992, dismissing the pro se petition of Scott M. Seaberg for relief under the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1989, ch. 38, par. 122-1 et seq. (now codified, as amended, at 725 ILCS 5/122-1 et seq. (West 1992))). Petitioner argues on appeal that the trial court erred by summarily dismissing his petition, which alleged ineffective assistance of trial counsel. According to the petition, counsel (1) gave incorrect legal advice which denied petitioner his constitutional right to testify, and (2) failed to file a motion to suppress the fruits of an illegal, "no knock" search.

On January 12, 1990, defendant was indicted for the following offenses: one count of the unlawful delivery of between 1 and 15 grams of cocaine (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401(b)(2) (now codified, as amended, at 720 ILCS 570/401(c)(2) (West 1992))), two counts of the unlawful delivery of between 15 and 100 grams of cocaine (Ill. Rev. Stat. 1987, ch. 56 1/2 par. 1401(a)(2) (now codified, as amended, at 720 ILCS 570/401(a)(2)(A) (West 1992))), one count of the unlawful possession of between 15 and 100 grams of cocaine with the intent to deliver (Ill. Rev. Stat. 1987, ch. 56 1/2 par. 1401(a)(2) (now codified, as amended, at 720 ILCS 570/401(a)(2)(A) (West 1992))), one count of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A-2 (now 720 ILCS 5/33A-2 (West 1992))), and one count of resisting a peace officer (Ill. Rev. Stat. 1987, ch. 38, par. 31-1 (now 720 ILCS 5/31-1 (West 1992))). He was found guilty in a bench trial and received the following sentences: 6 years and a $1,000 fine on count II; 8 years and a $2,500 fine on count III; 10 years and a $5,000 fine on count IV; 6 years and $5,000 on count IV; and 300 days incarceration on count VI. Count I was dismissed because it arose out of the same transaction as count II, armed violence. All sentences were ordered to be served concurrently. Petitioner did not directly appeal his convictions or sentences. In September 1992 he filed in the circuit court a post-conviction petition alleging violations of his constitutional rights and asking that his convictions be set aside in accordance with the Act. The petition was accompanied by petitioner's affidavit and a supporting memorandum of law. The court dismissed the petition without a hearing, on the ground that it was frivolous and patently without merit.

The Act provides a post-conviction remedy to petitioners who claim that substantial violations of their constitutional rights occurred during trial. ( People v. Eddmonds (1991), 143 Ill. 2d 501, 510, 161 Ill. Dec. 306, 578 N.E.2d 952.) A post-conviction proceeding is a collateral attack upon a final judgment, and its purpose is not to determine guilt or innocence, but to inquire into constitutional issues which have not been adjudicated. ( Eddmonds, 143 Ill. 2d at 510.) The petitioner ultimately bears the burden of proving that a substantial constitutional violation occurred at trial. Eddmonds, 143 Ill. 2d at 510.

The Act sets out a three-step process for adjudicating petitions for post-conviction relief. At the first stage, the trial court considers the petition, without input from the State or further pleadings from the defendant, in order to determine if it is frivolous and patently without merit. (Ill. Rev. Stat. 1989, ch. 38, par. 122-2.1 (now codified, as amended, at 725 ILCS 5/122-2.1 (West 1992)).) If the petition is not dismissed as frivolous and patently without merit, the court proceeds to the second stage where counsel, who may be appointed to represent an indigent defendant, is afforded an opportunity to amend the petition. (Ill. Rev. Stat. 1989, ch. 38, par. 122-4 (now codified, as amended, at 725 ILCS 5/122-4 (West 1992)).) At this point, the State may move to dismiss. If the petition is not dismissed on the State'smotion, the matter moves into the third and final stage, which is an evidentiary hearing. Ill. Rev. Stat. 1989, ch. 38, pars. 122-5, 122-6 (now 725 ILCS 5/122-5, 122-6 (West 1992)).

Petitioner contends that the dismissal of his petition, which occurred at the first stage of the process, was improper. Section 122-2.1(a)(2) of the Act, which contains the pertinent statutory language, provides:

"(a) Within 90 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section.

(2) If the petitioner is sentenced to imprisonment and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and Conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry." (725 ILCS 5/122-2.1(a)(2) (West 1992).)

To survive dismissal at the initial stage of a post-conviction proceeding, a petition need only present the gist of a meritorious constitutional claim. ( People v. Lawrence (1991), 211 Ill. App. 3d 135, 138, 155 Ill. Dec. 564, 569 N.E.2d 1175; People v. Dredge (1986), 148 Ill. App. 3d 911, 913, 102 Ill. Dec. 552, 500 N.E.2d 445.) However, the allegations of a post-conviction petition must be supported by the record in the case or accompanying affidavits. ( Lawrence, 211 Ill. App. 3d at 138.) Although a pro se defendant seeking post-conviction relief would not be expected to construct legal arguments, cite legal authority, or draft a petition as artful as would counsel, the pro se defendant must still plead sufficient facts from which the trial court could find a valid claim of the deprivation of a constitutional right. ( People v. Lemons (1993), 242 Ill. App. 3d 941, 946, 184 Ill. Dec. 642, 613 N.E.2d 1234.) A pro se petitioner must set forth the specific manner in which his rights were violated. ( People v. Porter (1988), 122 Ill. 2d 64, 74, 118 Ill. Dec. 465, 521 N.E.2d 1158.) In the absence of allegations raising a relevant issue, the court is not bound to search the entire record for some undisclosed but mitigating circumstances. ( Porter, 122 Ill. 2d at 76.) The dismissal of a post-conviction petition will not be reversed absent an abuse of discretion by the trial court. ( People v. Dean (1992), 226 Ill. App. 3d 465, 467, 168 Ill. Dec. 488, 589 N.E.2d 888; People v. Jackson (1991), 213 Ill. App. 3d 806, 811, 157 Ill. Dec. 406, 572 N.E.2d 475.) Petitioner insists that his petition alleged the gist of constitutional claims of ineffective assistance of trial counsel and that his claims were not frivolous or patently without merit either on their face or in light of the applicable record. We agree.

Petitioner's petition first stated that he was denied his constitutional right to testify because of the ineffectiveness of histrial counsel in knowing the applicable law. It is now generally recognized that a criminal defendant's prerogative to testify at his or her own trial is a fundamental right, which only the defendant may waive; whether to exercise that right is not one of those matters which is considered a strategic or tactical decision best left to trial counsel. ( Jones v. Barnes (1983), 463 U.S. 745, 751, 77 L. Ed. 2d 987, 993, 103 S. Ct. 3308, 3312; People v. Wilson (1986), 146 Ill. App. 3d 567, 580, 102 Ill. Dec. 192, 499 N.E.2d 972; People v. Campbell (1984), 129 Ill. App. 3d 819, 821, 84 Ill. Dec. 913, 473 N.E.2d 129.) Petitioner's affidavit stated that he wished to testify in his own behalf at the trial, but his trial counsel told him he would be impeached with his prior misdemeanor battery conviction and that his testimony would probably damage his case. The State acknowledges that the attorney's advice was erroneous because petitioner's credibility could not be impeached by prior misdemeanor battery convictions pursuant to People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695. Our review of the record confirms petitioner's argument that neither his misdemeanor battery conviction nor, for that matter, two other minor misdemeanor convictions revealed in the record could be a legal basis for impeachment of his credibility.

Nevertheless, the State argues that petitioner's claim should be rejected because he neither stated the nature or substance of his intended testimony nor alleged that his trial counsel used undue influence or coercion in denying his right to testify. The State cites no case law to support its argument that petitioner's failure to state the nature of his testimony is fatal to a petition which otherwise states the gist of a meritorious claim, in the context of the record of the trial court proceedings. The State also fails to cite legal authority for the proposition that petitioner's failure to allege undue influence or coercion by trial counsel ...


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