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06/30/97 PEOPLE STATE ILLINOIS v. MARK MARTIN

June 30, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARK MARTIN, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Sangamon County. No. 93CF27. Honorable Stuart H. Shiffman, Judge Presiding.

As Corrected September 23, 1997.

Honorable Robert J. Steigmann, P.j., Honorable John T. McCullough, J. - Concur, Honorable James A. Knecht, J. - Concur. Presiding Justice Steigmann delivered the opinion of the court.

The opinion of the court was delivered by: Steigmann

PRESIDING JUSTICE STEIGMANN delivered the opinion of the court:

In April 1991, defendant, Mark Martin, struck and killed three pedestrians while driving his pickup truck. In January 1993, a jury found defendant guilty of three counts of reckless homicide (Ill. Rev. Stat. 1991, ch. 38, par. 9-3(a)), two counts of driving while under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 95 1/2, pars. 11-501(a)(1), (a)(2)), and one count of leaving the scene of an accident (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-401(a)). In March 1993, the trial court sentenced defendant to 14 years in prison on each reckless homicide conviction and 364 days on the leaving the scene of the accident conviction, with all sentences to be served concurrently. Defendant appealed, and this court affirmed. See People v. Martin, 266 Ill. App. 3d 369, 640 N.E.2d 638, 203 Ill. Dec. 718 (1994).

In February 1996, defendant filed a pro se petition for post-conviction relief, alleging only that the trial court abused its discretion by considering the deaths of the victims as an aggravating factor at sentencing. The court subsequently dismissed defendant's petition as patently without merit pursuant to section 122-2.1(a)(2) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-2.1(a)(2) (West 1994)). In its order of dismissal, the court specifically found that (1) defendant's claim failed to allege a constitutional violation; (2) defendant had waived any claim regarding sentencing because he failed to raise the issue on direct appeal; and (3) the court considered "all appropriate factors" in imposing the sentence.

Defendant appeals, arguing that the trial court erred by dismissing his post-conviction petition because it presented a "meritorious claim" for relief due to a constitutional violation--namely, that defendant's counsel on direct appeal provided ineffective assistance by failing to raise the issue that the court considered improper aggravating factors at sentencing.

We affirm.

I. POST-CONVICTION HEARING ACT

In People v. Henderson, 171 Ill. 2d 124, 131, 662 N.E.2d 1287, 1292, 215 Ill. Dec. 147 (1996), the supreme court discussed the general rules regarding post-conviction proceedings, as follows:

"The [Act] provides a remedy for defendants who have suffered a substantial violation of their constitutional rights at trial. [Citation.] A post-conviction proceeding is not an appeal of the underlying conviction; rather, it is a collateral attack on the trial court proceedings in which a defendant attempts to establish constitutional violations that have not been and could not have been previously adjudicated. [Citation.] The defendant bears the burden of establishing that a substantial violation of his constitutional rights occurred."

It is within this context that we address defendant's claim.

II. INEFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL

A. Waiver

Defendant argues that the trial court erred by dismissing his post-conviction petition because it presented a meritorious claim that his counsel on direct appeal provided ineffective assistance by failing to raise the issue that the court considered improper aggravating factors at sentencing. Defendant specifically contends that even though his petition did not in fact allege ineffective assistance of appellate counsel, it should be viewed as presenting that claim because the waiver doctrine is relaxed where "the alleged issue of ineffective assistance of counsel stems from counsel on appeal." We disagree.

In support of his relaxed waiver contention, defendant relies on People v. Barnard, 104 Ill. 2d 218, 229, 470 N.E.2d 1005, 1008, 83 Ill. Dec. 585 (1984), and People v. Whitehead, 169 Ill. 2d 355, 371, 662 N.E.2d 1304, 1311-12, 215 Ill. Dec. 164 (1996). In Barnard, the defendant had not raised on direct appeal the issue of trial counsel's competency; instead, he raised the issue for the first time in his petition for leave to appeal to the supreme court. The supreme court nonetheless addressed that issue and other trial errors (as a matter of administrative convenience) "since defendant may raise the question of trial counsel's competency [in a post-conviction petition] under the [Act]." Barnard, 104 Ill. 2d at 229, 470 N.E.2d at 1008. In Whitehead, the supreme court held that a post-conviction petition claim may survive the bar of waiver when (1) the alleged waiver stems from ineffective assistance of counsel on appeal; (2) "'where fundamental fairness so requires'"; and (3) where the facts relating to the claim do not appear on the face of the original appellate record. Whitehead, 169 Ill. 2d at 371-72, 662 N.E.2d at 1311-12, quoting People v. Gaines, 105 Ill. 2d 79, 91, 473 N.E.2d 868, 875, 85 Ill. Dec. 269 (1984). In Whitehead, the defendant's post-conviction petition actually alleged that appellate counsel was ineffective for failing to raise a certain issue on direct appeal.

The present case is far different from both Barnard and Whitehead. Here, defendant's post-conviction petition never mentions the issue of ineffective assistance of his counsel on direct appeal. If this court accepted the position defendant asserts, nothing would stop a defendant's counsel on appeal from a dismissal of a post-conviction petition from combing the entire record and raising new arguments--couched in terms of ineffective ...


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