Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois, No. 92--CF--509 Honorable Cynthia Raccuglia, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Slater
The defendant, Ernesto Rivera, was convicted of controlled substance trafficking (720 ILCS 570/401.1 (West 1992)) and sentenced to 40 years in prison. Subsequently, he filed a post-conviction petition which was, in part, summarily dismissed. At the second stage, more of the defendant's allegations were dismissed. Finally, relief was denied following an evidentiary hearing. On appeal, the defendant contends that the trial court erred in entering partial dismissals of his post-conviction petition. We agree and remand the matter to the trial court for further proceedings consistent with this opinion.
The defendant is a Spanish-speaking Mexican American. He was charged with bringing more than 900 grams of cocaine into the State of Illinois with the intent to deliver the cocaine. His motion to suppress was denied. A jury found him guilty. He was sentenced to 40 years in prison and a street value fine of $1,774,290 was imposed upon him. The defendant's sentence was affirmed on appeal. People v. Rivera, No. 3--93--0648 (1995) (unpublished order under Supreme Court Rule 23).
Thereafter, the defendant filed a pro se post-conviction petition alleging six violations of his constitutional rights. The defendant alleged that: (1) his interpreter had not adequately translated the proceedings for him; (2) the sentencing statute under which he was sentenced was unconstitutional; (3) his prison sentence and street-value fine were excessive; (4) the trial court erred in denying his motion to suppress; (5) his consent to search was coerced; and (6) both his trial and appellate attorneys rendered ineffective assistance. The trial judge dismissed claims (2) through (5) as frivolous and patently without merit. However, she determined that the defendant had stated the gist of a meritorious claim in both (1) and (6). Therefore, the court appointed an attorney to represent the defendant at the second stage of the post-conviction process.
The defendant moved pro se to amend his post-conviction petition. He wanted to add two claims. Claim (7) argued that the defendant had been prejudiced by gender bias on the jury. In claim (8), the defendant claimed that he had been denied his right to testify on his own behalf. The defendant's appointed counsel filed an amended post-conviction petition on the defendant's behalf. This petition alleged incompetence on the part of the defendant's interpreter, ineffective assistance on the part of the defendant's attorneys, and excessive sentencing.
The State moved to dismiss the defendant's amended petitions. The trial judge dismissed all the claims except the defendant's contention that his interpreter had been incompetent. That issue was scheduled for an evidentiary hearing.
During the time before the evidentiary hearing, the matter was continued several times at the request of the defendant's attorney because a transcript of the trial proceedings was not available. Once the transcript became available, the defendant's post-conviction attorney had it translated into Spanish and delivered to the defendant for his review. After this delay, the matter proceeded to a hearing.
At the hearing, the defendant's trial attorney testified that he was unaware of any problems the defendant was having in understanding what was going on at the trial. Had the attorney been aware, he stated, he would have made things clear for the defendant. The defendant's interpreter testified that she had no difficulty translating for the defendant. She was also unaware that the defendant was confused by the trial. If she had known that the defendant was confused, she would have stopped the proceedings until things could be clarified or a new interpreter could be appointed. The defendant testified that he only understood approximately 50% of the trial proceedings. He claimed that the interpreter spoke too quickly and refused to slow down. The proceedings moved so quickly, according to the defendant, that he did not feel he could interrupt to seek clarification.
After hearing the evidence, the trial court found that the defendant had not proved that his interpreter was incompetent, only that he failed to understand some of the proceedings. The judge further found that the defendant had ample opportunity to stop the proceedings and ask for clarification if he needed it. Consequently, the court denied the defendant's post-conviction petition.
The defendant argues first on appeal that the trial court erred in entering partial dismissals of his post-conviction petition. He relies on People v. Noel, 291 Ill. App. 3d 541, 684 N.E.2d 414 (1997).
In Noel, the trial court dismissed one paragraph of the defendant's post-conviction petition because the allegations contained in that paragraph were frivolous and patently without merit. However, the decision was made after the expiration of the 90-day period for dismissing claims on that basis. The trial court allowed an evidentiary hearing on a separate allegation of the petition. Following the evidentiary hearing, the court denied the defendant relief.
On appeal, this court reversed the initial dismissal of the allegation of the defendant's petition because the court acted outside the 90-day period for effecting such a dismissal. Noel, 291 Ill. App. 3d at 544, 684 N.E.2d at 416. The denial of relief following the evidentiary hearing was affirmed. Noel, 291 Ill. App. 3d at 544, 684 N.E.2d at 416. In a final paragraph, the court cautioned against partial dismissal of post-conviction petitions, noting that partial dismissals could lead to piecemeal appeals. Noel, 291 Ill. App. 3d at 544, 684 N.E.2d at 416.
In Noel, we alluded to the problems we could foresee by allowing partial dismissals of post-conviction petitions. The facts of the case at bar allow us to determine that those problems should preclude the continued practice of partial dismissals.
A post-conviction proceeding is meant to inquire into the constitutional phases of the defendant's conviction which have not previously been investigated. People v. Albanese, 125 Ill. 2d 100, 531 N.E.2d 17 (1988). To survive a dismissal at the first stage, a pro se post-conviction petition need only present the gist of ...