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People v. Williams

February 19, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE, V. FRANK WILLIAMS, APPELLANT.


The opinion of the court was delivered by: Justice Heiple

Agenda 4-November 1998.

The defendant, Frank Williams, appeals from a Cook County circuit court order dismissing his amended post-conviction petition without an evidentiary hearing. Because defendant was sentenced to death, this court has jurisdiction over the instant appeal pursuant to Supreme Court Rule 651(a). 134 Ill. 2d R. 651(a). For the following reasons, we now affirm the circuit court.

BACKGROUND

The facts in this case are adequately set forth in this court's opinion on defendant's direct appeal, and only a brief summary of the facts is necessary here. Anthony Cole and Michelle Brueckmann, defendant's former fiancée, were leaving Brueckmann's home when defendant emerged from behind a van and screamed, "I told you I was going to kill you when I saw you together." Defendant shot Cole, and Cole fell to the ground. Defendant then shot Brueckmann in the head, and shot Cole again as Cole tried to flee. The police arrested defendant at his sister's home and recovered a .38-caliber revolver from defendant's jacket. Subsequent testing revealed that this gun fired the bullet removed from Cole's body. While in custody, defendant gave an oral statement in which he admitted he shot Cole and Brueckmann because he was upset after seeing them together at a shopping mall.

A jury in the circuit court of Cook County convicted defendant of, inter alia, the murder of Michelle Brueckmann and the attempted murder of Anthony Cole. Defendant waived a jury for sentencing. The trial court found defendant eligible for the death penalty based on the cold, calculated and premeditated manner of the murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(11)), and sentenced defendant to death. This court affirmed defendant's conviction and death sentence on direct appeal (People v. Williams, 173 Ill. 2d 48 (1996)), and the United States Supreme Court denied defendant's petition for writ of certiorari. Williams v. Illinois, 520 U.S. 1122, 137 L. Ed. 2d 339, 117 S. Ct. 1260 (1997).

Defendant subsequently filed a pro se post-conviction petition in which he alleged: (1) his trial counsel was ineffective for failing to obtain the assistance of a blood-type expert to type the blood on Brueckmann's clothing; (2) his trial and appellate counsel were ineffective for failing to challenge the chain of custody of the bullet removed from Cole's body; and (3) his appellate counsel was ineffective for failing to challenge on direct appeal the prosecutor's comment during closing argument that certain blood spatters were inconsistent with defendant's version of events. The circuit court appointed Ernest DiBenedetto as defendant's post-conviction counsel. DiBenedetto filed an amended post- conviction petition which included a fourth claim: defendant's trial counsel was ineffective for failing to "retain the services of a mitigation specialist in ample time to allow for a full and complete investigation and presentation of factors in mitigation." No affidavits were attached to the amended post-conviction petition.

The circuit court granted the State's motion to dismiss the amended post-conviction petition, holding the allegations in the petition were frivolous and technically without merit. The circuit court also held that defendant's claim regarding the mitigation specialist was barred by res judicata.

ANALYSIS

Defendant raises only one argument on appeal. Defendant argues his post-conviction counsel failed to comply with Supreme Court Rule 651(c) by not supporting the claims in the amended post-conviction petition with affidavits or other evidence. *fn1 This court reviews the dismissal of a post-conviction petition without an evidentiary hearing de novo. People v. Coleman, 183 Ill. 2d 366, 378 (1998).

It is well established that a defendant has no constitutional right to counsel in post-conviction proceedings. People v. Johnson, 154 Ill. 2d 227, 237 (1993); Pennsylvania v. Finley, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 546, 107 S. Ct. 1990, 1993 (1987). Counsel for indigent capital defendants who file pro se post-conviction petitions, however, is provided by statute. 725 ILCS 5/122-4 (West 1996); see also 134 Ill. 2d R. 651(c). Rule 651(c) establishes the level of assistance appointed counsel must provide to post-conviction petitioners. Rule 651(c) provides in relevant part:

"The record filed in [the circuit] court [in post-conviction proceedings] shall contain a showing, which may be made by the certificate of petitioner's attorney, that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner's contentions." 134 Ill. 2d R. 651(c).

Rule 651(c) does not require that defendants receive the same level of assistance of counsel that the Constitution guarantees to defendants at trial, but it does require counsel to provide a "reasonable level of assistance" in post-conviction proceedings. (Emphasis omitted.) People v. Owens, 139 Ill. 2d 351, 364 (1990).

In People v. Johnson, 154 Ill. 2d 227 (1993), this court held that post- conviction counsel has no obligation under Rule 651(c) to locate witnesses not specifically identified by the petitioner or to conduct an investigation to discover the identity of witnesses who would provide evidence to support a claim in the post-conviction petition. Johnson, 154 Ill. 2d at 247-48. In Johnson, we noted:

"While post-conviction counsel has an obligation to present a petitioner's claims in appropriate legal form, he is under no obligation to actively search for sources outside the record that might support general claims raised in a post-conviction petition. The petitioner has the obligation to inform counsel with specificity of the identity of witnesses who should have been called in his defense. The petitioner also has an obligation to inform counsel generally of the information which such witnesses might have offered at trial or the sentencing hearing. Upon receipt of such information, counsel has an obligation to attempt to contact those witnesses who might provide information needed to support a potentially meritorious claim raised in the post-conviction ...


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