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09/25/96 PEOPLE STATE ILLINOIS v. KRISTOFFER WENDT

September 25, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KRISTOFFER WENDT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of McHenry County. No. 93--CF--1012. Honorable Susan F. Hutchinson, Judge, Presiding.

Released for Publication October 25, 1996.

Presiding Justice McLAREN delivered the opinion of the court: Inglis and Thomas, JJ., concur.

The opinion of the court was delivered by: Mclaren

PRESIDING JUSTICE McLAREN delivered the opinion of the court:

The defendant, Kristoffer Wendt, appeals the circuit court's order dismissing without an evidentiary hearing his post-conviction petition (see 725 ILCS 5/122--2.1 (West 1994)). The defendant contends that he was denied the effective assistance of counsel when his trial attorney failed to move to reconsider the sentence although the defendant requested that he do so. We affirm.

An indictment originally charged the defendant with first-degree murder (720 ILCS 5/9--1(a)(2) (West 1994)). Extensive pretrial proceedings ensued, including a Supreme Court Rule 402 conference (134 Ill. 2d R. 402) at which no court reporter was present. Thereafter, the defendant entered a negotiated guilty plea to one count of second-degree murder (720 ILCS 5/9--2(a)(1) (West 1994)) and one count of aggravated battery (720 ILCS 5/12--4(b)(8) (West 1994)). In exchange for the plea, the State agreed to nol-pros the first-degree murder charge and recommend an extended-term sentence of 22 years for murder, with a concurrent two-year term for aggravated battery.

After hearing the factual basis, the court accepted defendant's plea. The court requested the respective attorneys to state briefly any relevant aggravating or mitigating factors. However, the court heard no formal testimony and no presentence report was prepared. Following the attorneys' statements, the court imposed the agreed-upon sentences. The defendant filed neither a post-plea motion nor a notice of appeal.

The defendant filed a pro se petition pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122--1 et seq. (West 1994)) alleging that (1) the defendant was denied the effective assistance of counsel where counsel failed to file a requested motion to reduce the sentence; (2) the extended-term sentence for second-degree murder was unjustified; and (3) the defendant pleaded guilty only because his lawyers "scared" him into it by telling him he would receive a sentence of at least 30 years if he went to trial. The court dismissed the petition as patently without merit (725 ILCS 5/122--2.1(a)(2) (West 1994)), and the defendant appeals.

On appeal, the defendant argues only the first point raised in his petition: that he was denied the effective assistance of counsel when his attorney failed to accede to his request to file a motion to reconsider the sentence. The defendant contends that his petition adequately states the gist of a constitutional violation and that, because he was effectively denied his right to an appeal, he need not establish prejudice resulting from his counsel's neglect.

The Act provides a remedy to criminal defendants who claim substantial violations of their constitutional rights during trial court proceedings. People v. Eddmonds, 143 Ill. 2d 501, 510, 161 Ill. Dec. 306, 578 N.E.2d 952 (1991); People v. Lemons, 242 Ill. App. 3d 941, 943, 184 Ill. Dec. 642, 613 N.E.2d 1234 (1993). A post-conviction petition is not an appeal, but a collateral attack upon a final judgment. Eddmonds, 143 Ill. 2d at 510. The purpose of such a proceeding is not to determine guilt or innocence, but to inquire into constitutional issues which have not been, and could not have been, previously adjudicated. People v. Gaines, 105 Ill. 2d 79, 87, 85 Ill. Dec. 269, 473 N.E.2d 868 (1984). In a post-conviction proceeding, the petitioner bears the burden of proving that a substantial constitutional violation occurred. Eddmonds, 143 Ill. 2d at 510; People v. Griffin, 109 Ill. 2d 293, 303, 93 Ill. Dec. 774, 487 N.E.2d 599 (1985).

In addition, section 122--2.1 of the Act permits a trial court to dismiss without an evidentiary hearing a petition that is frivolous or patently lacks merit. 725 ILCS 5/122--2.1(a)(2) (West 1994); Lemons, 242 Ill. App. 3d at 944. A post-conviction petitioner is entitled to an evidentiary hearing only if he makes a substantial showing of a constitutional violation and the allegations are supported by the record, affidavits, or some other evidence. People v. Del Vecchio, 129 Ill. 2d 265, 279, 135 Ill. Dec. 816, 544 N.E.2d 312 (1989); People v. Hickox, 229 Ill. App. 3d 454, 456 (1992).

"A 'gist of a meritorious claim' is not a bare allegation of a deprivation of a constitutional right. Although a pro se defendant seeking post-conviction relief would not be expected to construct legal arguments, cite legal authority, or draft her petition as artfully as would counsel, the pro se defendant must still plead sufficient facts from which the trial court could find a valid claim of deprivation of a constitutional right." (Emphasis in original.) Lemons, 242 Ill. App. 3d at 946, 613 N.E.2d 1234, 184 Ill. Dec. 642, citing People v. Porter, 122 Ill. 2d 64, 74, 118 Ill. Dec. 465, 521 N.E.2d 1158 (1988).

Generally, a claim of ineffective assistance of counsel requires that the defendant establish two elements: (1) that the attorney's performance fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068 (1984). However, if the defendant is unable to establish the second prong of the test, i.e., sufficient prejudice, we need not consider the first prong of the test, i.e., the reasonableness of the attorney's conduct. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; Eddmonds, 143 Ill. 2d at 512.

The issue in this case is whether a defendant who agrees to a specified sentence pursuant to a plea agreement may base a claim of ineffective assistance of counsel on counsel's failure to request a reduction of the sentence, without alleging any basis for such a challenge. In other words, is the prejudice prong of the Strickland test (466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052) ...


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