Appeal from the Circuit Court of Madison County. No. 96-CF-1196 Honorable Charles V. Romani, Jr., Judge, presiding.
The opinion of the court was delivered by: Justice Hopkins
Motion to publish granted June 8, 2000.
Defendant appeals from the trial court's summary dismissal of his two post-conviction petitions without an evidentiary hearing within the first 90 days after they were filed. See 725 ILCS 5/122-2.1 (West 1998). These cases were consolidated on appeal. At issue is whether defendant was entitled to an evidentiary hearing on either of these petitions. We find that defendant was entitled to an evidentiary hearing on his first post-conviction petition. Accordingly, we reverse and remand for an evidentiary hearing.
On appeal from a summary dismissal of a post-conviction petition, the standard of review is plenary. See People v. Coleman, 183 Ill. 2d 366, 388 (1998). In Coleman, the supreme court explained this standard of review as follows:
"The question raised in an appeal from an order dismissing a postconviction petition is whether the allegations in the petition, liberally construed and taken as true, are sufficient to invoke relief under the [Post-Conviction Hearing] Act [725 ILCS 5/122-1 et seq. (West 1998)]. Due to the elimination of all factual issues at the dismissal stage of a postconviction proceeding, the question is, essentially, a legal one, which requires the reviewing court to make its own independent assessment of the allegations. Thus, a court of review should be free to substitute its own judgment for that of the circuit court in order to formulate the legally correct answer. *** A court of review has the same capability as does the circuit court in the first instance to look at the allegations and construe them liberally in favor of the petitioner and as set forth in light of the trial record." Coleman, 183 Ill. 2d at 388.
A post-conviction petition is a collateral attack on the judgment of conviction. See People v. Piper, 272 Ill. App. 3d 843, 845 (1995). "The purpose of the proceeding is to resolve allegations that constitutional violations occurred at trial when those allegations were not, or could not have been, adjudicated previously." Piper, 272 Ill. App. 3d at 845. In the first stage, the defendant files a petition and the circuit court independently determines whether the petition is frivolous or patently without merit, without input from either side.
To survive dismissal, a petition need only present the gist of a constitutional claim. See People v. Porter, 122 Ill. 2d 64, 74 (1988). This is a low threshold; a defendant need only present a modest amount of detail and need not make legal arguments or cite to legal authority. See People v. Gaultney, 174 Ill. 2d 410, 418 (1996); Porter, 122 Ill. 2d at 74. The petition must be supported by "affidavits, records, or other evidence supporting its allegations," or the petition "shall state why the same are not attached." 725 ILCS 5/122-2 (West 1998). If the circuit court does not dismiss the petition pursuant to section 122-2.1, the petition is docketed for further consideration and, if the defendant is indigent, the court is required to appoint counsel. See Gaultney, 174 Ill. 2d at 418.
Thus, our review is essentially the same as that required of the trial court. We are to review the allegations of the post-conviction petition, construing them liberally, with our focus on whether the petition states the gist of a meritorious claim of constitutional deprivation. A post-conviction petitioner is not entitled to an evidentiary hearing as a matter of right, but the supreme court has repeatedly stressed that a hearing is required whenever the petitioner makes a substantial showing of a violation of constitutional rights. See Coleman, 183 Ill. 2d at 381. "To accomplish this, the allegations in the petition must be supported by the record in the case or by its accompanying affidavits." Coleman, 183 Ill. 2d at 381. When assessing the sufficiency of the allegations, the trial court and the court of review are to consider the petition in light of the entire record. See People v. Vunetich, 185 Ill. App. 3d 415, 419 (1989).
Initially, we note that prior to entering this opinion, we granted the State's motion to strike portions of defendant's brief that refer to the grand jury testimony in this case, and we denied defendant's motion to supplement the record with the transcript of the grand jury proceedings. After reviewing the record, we vacate those orders and hereby grant defendant's motion to supplement the record with the transcripts of the grand jury proceedings. The record is clear that defendant, his attorneys, the State, and the court all refer to those transcripts several times on the record. Moreover, one of the issues defendant raises in his post-conviction petitions concerns certain grand jury testimony that was later recanted. Defendant's contention that the recanted testimony entitles him to vacate his nolo contendere guilty plea is sufficient to entitle defendant to supplement the record with the transcripts.
Defendant was arrested on June 25, 1996, for sexual assault against Barbara Young. On June 27, 1996, a criminal indictment was filed against defendant, charging him with two counts of criminal sexual assault and one count of unlawful restraint. On July 2, 1996, defendant's court-appointed attorney filed a speedy trial demand. On July 12, 1996, the trial court ordered the State to provide defendant's attorney with a transcript of the grand jury proceeding that was held on June 27, 1996.
On July 12, 1996, the State filed a motion for discovery, requesting defendant to provide samples of his blood, hair, and saliva for testing purposes. On September 3, 1996, the State's motion was called for hearing. The State acknowledged that defendant announced ready for the trial scheduled for September 9, 1996, but the State argued that it was entitled to a continuance to obtain DNA testing results. On September 9, 1996, the 70th day since defendant's incarceration, the trial court granted the State's motion for discovery.
On October 10, 1996, another grand jury proceeding was held, and an amended indictment was filed on the same date. The amended indictment charged defendant with one count of aggravated criminal sexual abuse, which replaced one of the counts of aggravated criminal sexual assault.
On October 22, 1996, defendant's case was scheduled for trial, but the State moved for another continuance for the reason that the State had failed to locate or subpoena two material witnesses, Barbara Young and Tamara McKinney. Young was the complaining witness, and McKinney was present during the assault and testified about the assault in the first grand jury proceeding. The court found that Young and McKinney were material witnesses and that the State exercised due diligence to locate Young but had not exercised due diligence to locate McKinney. Under section 103-5(c) of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5(c) (West 1998)), the court granted the State a 42-day continuance, until December 2, 1996, which the trial court calculated to be the 160th day of defendant's incarceration since his arrest. The trial court warned the State that the case would go to trial on December 2nd whether or not the State's witnesses were available.
On December 2, 1996, the trial court entered the following order: "Pursuant to court's request defendant on his motion continues the trial setting from Dec. 2, 1996 to Dec. 3, 1996. One day delay attributable to defendant Mr. Holliday. Mot[ion] is without prejudice to [defendant's] *** Mot[ion] for discharge pursuant to 725 ILCS 5/103-5(c)." (Emphasis added.)
Also on December 2, 1996, defendant filed a petition for discharge, which alleged, inter alia, that defendant had "spent 161 continuous days in custody with no delay of any type attributable" to defendant. Defendant alleged that the State was granted a continuance in order to conduct DNA testing but that the State "in fact chose not to do any DNA testing on Mr. Holliday's blood." Defendant argued that the trial court abused its discretion in finding that the State used due diligence in its attempts to locate Young and in continuing the case for 42 days on that basis. There is no transcript of any hearing conducted on defendant's petition for discharge, nor is there an order granting or denying the motion.
The next day, December 3, 1996, defendant entered a negotiated guilty plea in which he did not admit guilt but stipulated that the State could prove the charge of aggravated criminal sexual abuse. This type of plea is commonly referred to as a nolo contendere plea or an Alford plea. See North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970). Under the terms of the negotiated plea, the State agreed to dismiss the charges of aggravated criminal sexual assault and unlawful restraint in exchange for defendant's stipulation that the State could prove the charge of aggravated criminal sexual abuse, a class two felony. The trial court admonished defendant about his rights, and the State gave a factual basis for the plea. The trial court accepted defendant's plea of guilty and dismissed the remaining counts.
The record does not contain any subpoenas for either Young or McKinney for the December trial setting, and there is no indication of record that either Young or McKinney were present when defendant entered his guilty plea.
On December 17, 1996, the trial court conducted a hearing on defendant's pro se motion seeking to have his court-appointed attorneys removed from his case. At that hearing, defendant told the court that his attorneys were in possession of a videotape that would show "the alleged perjury of the victim" and that defendant would not have pled guilty if he had known what was on the videotape.
One of defendant's attorneys responded that the tape was "a rather brief tape," showing McKinney and Young "and another woman *** all naked together." Defendant's attorney stated that he thought the tape also showed "a naked male." Defendant's attorney argued that he explained to defendant "exactly what was on the tape" and the evidentiary problems with the tape, that he thought it unlikely that the videotape would actually be introduced into evidence, but that he thought he might have been allowed to question Young about her prior sexual relationship with McKinney.
Additionally, defendant's pro se motion also alleged that defendant's 120 days for a speedy trial elapsed although his lawyer did not move for dismissal, that the judge "granted a 42[-]day extension due to the fact the State wasn't ready," and that on "the 43rd day [defendant] was taken to court ...