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03/23/95 PEOPLE STATE ILLINOIS v. HARRY L. GOSIER

March 23, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
HARRY L. GOSIER, APPELLANT.



The Honorable Justice Heiple delivered the opinion of the court:

The opinion of the court was delivered by: Heiple

JUSTICE HEIPLE delivered the opinion of the court:

During the course of his jury trial, in the circuit court of Champaign County, defendant, Harry Gosier, pled guilty to charges of two separate murders and two separate aggravated criminal sexual assaults. Following his guilty pleas, the trial court found that the defendant was eligible for the death penalty. Subsequently, the jury that had originally been empaneled to determine guilt found that there were no mitigating factors sufficient to preclude the imposition of the death penalty. The trial court then sentenced the defendant to death for the murders, and to consecutive 60-year sentences for the two counts of aggravated criminal sexual assault. On direct appeal, this court unanimously affirmed defendant's convictions and sentence. People v. Gosier (1991), 145 Ill. 2d 127, 163 Ill. Dec. 823, 582 N.E.2d 89.

Defendant thereafter filed a post-conviction petition (725 ILCS 5/122-1 et seq. (West 1992)), alleging that he should be allowed to withdraw his guilty plea because his plea had not been voluntarily given, and that he should be given a new sentencing hearing because he was not afforded effective assistance of counsel at the hearing. The trial court denied relief without an evidentiary hearing. Defendant has filed the instant appeal, seeking an evidentiary hearing on his petition's allegations.

Finding no merit in the allegations and no basis for an evidentiary hearing, we affirm the denial of post-conviction relief. The facts which underlie defendant's conviction are discussed in detail in defendant's first direct appeal (see Gosier, 145 Ill. 2d 127, 163 Ill. Dec. 823, 582 N.E.2d 89) and will be repeated here only insofar as they are relevant to the present appeal.

I

Defendant first contends that his guilty plea was not knowing, intelligent or voluntary because he was not legally competent at the time the plea was made.

The State asserts that this contention is waived because this court addressed the validity of defendant's guilty plea on direct appeal. Defendant counter-argues, however, that this court did not directly address the validity of his guilty plea, for it merely held that the trial court properly admonished defendant pursuant to Supreme Court Rule 402.

At the outset, we note that, on direct appeal, defendant argued unsuccessfully that his plea violated the constitution because he was never admonished that the could plead guilty but mentally ill; that the trial court improperly denied his request to withdraw his guilty plea and to substitute a plea of guilty but mentally ill; and that the trial court improperly denied his post-trial motion to withdraw his guilty plea. ( Gosier, 145 Ill. 2d at 133.) Therefore, it is true that defendant did not raise the precise issue on direct appeal which he now raises, i.e., that due to his state of mind at the time of the plea, no type of admonishment would have made his plea a knowing, intelligent, or voluntary act.

Under the doctrine of res judicata and waiver, the purpose of post-conviction review is limited 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.) Consequently, claims that either were raised on direct appeal or could have been raised on direct appeal, but were not, will not ordinarily be considered in a post-conviction proceeding. People v. Collins (1992), 153 Ill. 2d 130, 180 Ill. Dec. 60, 606 N.E.2d 1137.

Defendant vigorously attacked several trial court determinations relating to his guilty plea on his direct appeal to this court. He offers no explanation for his failure to raise his present allegation regarding the guilty plea. Therefore, since defendant could have raised this issue on direct appeal, but failed to do so, the issue is waived.

II

Defendant next contends that he was denied effective assistance of counsel at his sentencing hearing. According to the defendant, his counsel was ineffective because (1) he failed to investigate and present mitigation evidence regarding defendant's childhood, and (2) he failed to inform the defendant that he could have a new jury empaneled for his sentencing hearing.

Initially, the State asserts that defendant raised the ineffective-assistance-of-counsel claim on direct appeal and therefore this issue is waived. However, defendant's present ineffective-assistance-of-counsel claim is supported by affidavits providing evidentiary information and facts that were not in the record on his direct appeal. (See, e.g., People v. Owens (1989), ...


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