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10/03/97 PEOPLE STATE ILLINOIS v. RODNEY L.

October 3, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
RODNEY L. WENINGER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois. No. 91--CF--638. Honorable John D. O'Shea, Judge Presiding.

Released for Publication November 7, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable William E. Holdridge, Justice, Honorable Thomas J. Homer, Justice. Justice Homer delivered the opinion of the court. Lytton, P.j., and Holdridge, J. concur.

The opinion of the court was delivered by: Homer

The Honorable Justice HOMER delivered the opinion of the court:

Defendant Rodney L. Weninger appeals from the trial court's denial of his petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq. (West 1994)). We affirm.

PROCEDURAL CONTEXT

The defendant was convicted of aggravated criminal sexual assault and criminal sexual assault (720 ILCS 5/12--14(b)(1), 12--13 (a)(3) (West 1992)) of his 10-year-old adopted daughter, T.W. On April 6, 1992, he was sentenced to 15 years in the Department of Corrections. The defendant appealed, arguing that (1) the State's evidence was insufficient to convict; and (2) the court erred in permitting T.W. to testify on closed circuit television pursuant to the Child Shield Act (the Act) (725 ILCS 5/106B--1 (West 1992)). This court affirmed, holding that the evidence proved the defendant guilty beyond a reasonable doubt, and the defendant's sixth amendment right of confrontation was not violated by the Act on its face or as applied. People v. Weninger, 243 Ill. App. 3d 719, 611 N.E.2d 77, 183 Ill. Dec. 224 (1993), pet. for leave to appeal denied, 152 Ill. 2d 578, 622 N.E.2d 1225.

On October 31, 1994, the defendant filed a petition for post-conviction relief, arguing that (1) application of the Act deprived him of his right to a face-to-face confrontation with T.W. under section 8 of article I of the Illinois Constitution; and (2) he had received ineffective assistance of counsel. After reviewing the parties' arguments and relevant case law, the court denied the petition. Our consideration of the issues on appeal requires a brief overview of the Act.

THE CHILD SHIELD ACT

At the time of the defendant's trial and during the pendency of his direct appeal, the Child Shield Act permitted child sex offense victims, under certain circumstances, to testify via closed circuit television outside the physical presence of the defendant. 725 ILCS 5/106B--1 (West 1992). The procedure had passed federal constitutional muster ( Maryland v. Craig, 497 U.S. 836, 111 L. Ed. 2d 666, 110 S. Ct. 3157 (1990)); however, there were no reported opinions ruling on the Act's validity under the Illinois Constitution. On February 17, 1994, after the mandate was issued on the defendant's direct appeal and his petition for leave to appeal was denied, the Illinois Supreme Court struck down the Act, holding that it violated the "face-to-face" confrontation clause of the state constitution (Ill. Const. 1970, art. I, § 8). People v. Fitzpatrick, 158 Ill. 2d 360, 633 N.E.2d 685, 198 Ill. Dec. 844 (1994).

The Illinois Constitution was subsequently amended to remove the "face-to-face" language of article I, section 8, and conform this state's confrontation clause to the confrontation clause of the sixth amendment of the federal constitution. Ill. Const. 1970, art. I, § 8 (amended November 8, 1994). The Child Shield Act was then reenacted. 725 ILCS 5/106B--5 (West Supp. 1995).

In the meantime, People v. Dean, 175 Ill. 2d 244, 677 N.E.2d 947, 222 Ill. Dec. 413 (1997), was pending direct review when Fitzpatrick was handed down. There, as in this case and Fitzpatrick, the child victim had testified by closed circuit television outside the defendant's physical presence. At issue in Dean was whether, given the subsequent amendment to the state constitution and reenactment of the Act, the defendant was entitled to a new trial pursuant to Fitzpatrick. A divided appellate court had held that the state constitutional amendment cured any error in Dean's trial. People v. Dean, No. 3--93--0659 (1995) (unpublished order under Supreme Court Rule 23). The supreme court, however, disagreed, noting that an opinion declaring a new constitutional rule is to be applied retroactively to criminal cases pending direct review at the time the new rule is announced. Since Fitzpatrick was clearly a new rule of constitutional dimension, the court granted Dean a new trial in which he would be entitled to confront the victim face-to-face. Dean, 175 Ill. 2d at 261, 677 N.E.2d at 955.

ISSUES AND ANALYSIS

Retroactive Application of ...


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