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01/19/95 PEOPLE STATE ILLINOIS v. HENRY BRISBON

January 19, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
HENRY BRISBON, APPELLANT.



Chief Justice Bilandic delivered the opinion of the court. Justice Harrison, dissenting.

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

The defendant, Henry Brisbon, brings this appeal from an order of the circuit court of Will County dismissing his post-conviction petition. In 1985, the defendant, who was incarcerated at the Stateville prison, was convicted by a jury for the murder of fellow prison inmate Richard "Hippie" Morgan. The defendant was sentenced to death. On direct appeal, this court affirmed the defendant's conviction, but reversed and remanded the cause for a new sentencing hearing due to prosecutorial misconduct. People v. Brisbon (1985), 106 Ill. 2d 342, 88 Ill. Dec. 87, 478 N.E.2d 402.

Following a second sentencing hearing before a jury, the defendant was again sentenced to death. On direct appeal from that sentence, this court affirmed the defendant's sentence. ( People v. Brisbon (1989), 129 Ill. 2d 200, 135 Ill. Dec. 801, 544 N.E.2d 297.) The United States Supreme Court denied the defendant's petition for a writ of certiorari. Brisbon v. Illinois (1990), 494 U.S. 1074, 108 L. Ed. 2d 797, 110 S. Ct. 1796.

In 1990, the defendant, with the assistance of counsel, filed a preliminary petition for relief under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1989, ch. 38, par. 122-1 et seq.) The State filed a motion to dismiss the preliminary post-conviction petition. Thereafter, the defendant, again with the assistance of counsel, filed an amended post-conviction petition. After reviewing the amended post-conviction petition, the trial court determined that the defendant failed to raise any constitutional issues that would require a full evidentiary hearing. Accordingly, the trial judge dismissed the defendant's post-conviction petition. The defendant now appeals to this court. 134 Ill. 2d R. 651(a).

For the following reasons, we affirm the judgment of the circuit court of Will County.

PREFATORY NOTE

The Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1989, ch. 38, par. 122-1 et seq.) provides a remedy to a criminal defendant who claims that a substantial violation of his Federal or State constitutional rights occurred in the proceedings that resulted in his conviction. ( People v. Eddmonds (1991), 143 Ill. 2d 501, 510, 161 Ill. Dec. 306, 578 N.E.2d 952.) A proceeding under the Act is not an appeal per se, but a collateral attack on a prior judgment. ( People v. Caballero (1989), 126 Ill. 2d 248, 258-59, 128 Ill. Dec. 1, 533 N.E.2d 1089.) In order to prevail under the Act, the defendant must establish a substantial deprivation of his rights under the United States Constitution or the Constitution of Illinois. People v. Griffin (1985), 109 Ill. 2d 293, 303, 93 Ill. Dec. 774, 487 N.E.2d 599.

We comment briefly about the history of section 122-2.1 of the Act. Prior to 1990, post-conviction petitioners were not entitled to the assistance of counsel in drafting their post-conviction petition. When a petitioner filed a post-conviction petition, the trial court reviewed the petition to determine whether it was frivolous or patently without merit. (See Ill. Rev. Stat. 1987, ch. 38, par. 122-2.1(a).) If the petition was frivolous, the trial court dismissed it without appointing counsel. (Ill. Rev. Stat. 1987, ch. 38, par. 122-2.1(a). If the petition was not frivolous, the trial court appointed counsel to assist the petitioner in filing an amended post-conviction petition. (Ill. Rev. Stat. 1987, ch. 38, par. 122-4.) The amended petition was then subject to the State's motion to dismiss. Ill. Rev. Stat. 1987, ch. 38, par. 122-5.

In 1989, however, the legislature enacted Public Act 86-655 (effective Jan. 1, 1990), to amend section 122-2.1(a) of the Act (see Ill. Rev. Stat. 1987, ch. 38, par. 122-2.1(a)). The revised section provides that where a post-conviction petitioner is under a sentence of death, the court shall appoint counsel to assist the petitioner in preparing the post-conviction petition if the petitioner is without funds to procure counsel. (Ill. Rev. Stat. 1989, ch. 38, par. 122-2.1(a)(1).) Public Act 86-655 also created section 122-2.1(a)(2), which provides that if a prisoner is sentenced to imprisonment and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition. (Ill. Rev. Stat. 1989, ch. 38, par. 122-2.1(a)(2).) The trial court need not appoint counsel before it dismisses the petition of a prisoner not sentenced to death.

The dissent contends that the trial court's order was void because the trial court failed to follow the procedures established in section 122.2.1(b) (Ill. Rev. Stat. 1989, ch. 38, par. 122-2.1(b)). The dissent claims that the Act required the circuit court to order the petition to be docketed for further consideration in accordance with sections 122-4 through 122-6 of the Act (Ill. Rev. Stat. 1989, ch. 38, pars. 122-4 through 122-6; par. 122-2.1(b)). The trial court could have then dismissed the petition only after the State filed a motion to dismiss the amended post-conviction petition. (Ill. Rev. Stat. 1989, ch. 38, par. 122-5.) According to the dissent, the fact that the trial court dismissed the amended petition before the State filed a motion to dismiss renders the trial court's order void. The defendant did not object at trial to this alleged error, nor did he ever raise this issue before this court.

We do not find that this minor procedural irregularity rendered the trial court's order void. It is evident that the legislature amended section 122-2.1(a) to provide a post-conviction petitioner under a death sentence with the assistance of counsel in drafting his petition for post-conviction relief. In this case, the court complied with the statute by providing the defendant with the assistance of counsel in drafting both his preliminary and amended post-conviction petitions.

As previously noted, the State filed a motion to dismiss the preliminary petition. The motion to dismiss argued that the defendant's filing of a "preliminary" post-conviction petition was a further attempt to delay the execution of his death sentence. At that time, 12 years had passed since the defendant had committed the murder for which he was convicted and ultimately sentenced to death. The State's motion reflects its frustration with the defendant's continued attempt to thwart the judicial process by raising numerous issues that had already been reviewed and rejected in the trial and appellate courts.

The defendant thereafter filed an amended post-conviction petition, again with the assistance of counsel. The trial court reviewed the amended petition and dismissed it as frivolous. While it is true that the trial court dismissed the amended petition before the State had the opportunity to file yet another motion to dismiss, we nevertheless find that the trial court's order was valid. The dissent attempts to elevate form over substance. The slight procedural deviation does not render the trial court's order void.

ANALYSIS

The defendant challenges the trial court's dismissal of his amended post-conviction petition without an evidentiary hearing. The defendant, however, is not entitled to an evidentiary hearing unless the allegations of the petition, supported where appropriate by the trial record or by accompanying affidavits, make a substantial showing that the defendant's rights have been violated. ( People v. Gaines (1984), 105 Ill. 2d 79, 91-92, 85 Ill. Dec. 269, 473 N.E.2d 868.) For the purpose of determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any accompanying affidavits are to be taken as true. Caballero, 126 Ill. 2d at 259, citing People v. Cihlar (1986), 111 Ill. 2d 212, 95 Ill. Dec. 297, 489 N.E.2d 859.

Ineffective Assistance of Counsel

A. Sentencing Hearing

The facts of this case are adequately set forth in this court's opinion on the defendant's direct appeal, and will be repeated here only where necessary. The defendant's post-conviction petition alleges, inter alia, that he was deprived of the effective assistance of counsel at his sentencing hearing in violation of the sixth amendment. The defendant argues that his counsel was incompetent because his lawyer failed to investigate or present substantial mitigating evidence to the sentencing jury, and that he was prejudiced by such incompetence.

The State maintains that the defendant has waived this issue by failing to raise it on direct appeal, particularly because he was represented by different counsel on direct appeal than at trial. Principles of res judicata and waiver limit the scope of post-conviction review "to constitutional matters which have not been, and could not have been, previously adjudicated." ( People v. Winsett (1992), 153 Ill. 2d 335, 346, 180 Ill. Dec. 109, 606 N.E.2d 1186.) However, the waiver rule is relaxed where the facts relating to the issue of incompetency do not appear on the face of the record. (See People v. Owens (1984), 102 Ill. 2d 145, 79 Ill. Dec. 654, 464 N.E.2d 252; Gaines, 105 Ill. 2d at 91.) As the record does not show that the mitigation evidence that the ...


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