Appeal from Circuit Court of McLean County No. 96CF83 Honorable Ronald C. Dozier, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cook
A jury convicted defendant James Black on March 21, 1996, of four counts of aggravated stalking. The trial court sentenced him to four concurrent eight-year terms in prison. On direct appeal, this court affirmed. People v. Black, No. 4-96-0419 (January 24, 1997) (unpublished order under Supreme Court Rule 23). The case comes to us upon denial of Black's petition for post-conviction relief (725 ILCS 5/122-1 (West 1998)), wherein Black alleges the ineffectiveness of both his trial counsel and his counsel on direct appeal.
Black's trial garnered a considerable amount of publicity in the McLean County area. On March 21, 1996, a jury was empaneled and opening arguments were heard. On the morning of March 22, an article regarding the trial appeared on page A2 of a Bloomington-Normal newspaper, the Pantagraph. The article contained several items that Black alleges would have prejudiced any juror who read them. For instance, the article stated that Black was being held without bond, "a measure usually restricted to murder suspects." The article also alleged that Black's trial counsel, Mark Messman, "agree[d] with most of the information outlined by [the State]." The article noted that Black and the complaining witness, Jeri Leenders, had gotten engaged despite Black's incarceration and a court order barring the two from having any contact. It was the stated opinion of the prosecutor that the two had "dodge[d]" the order. The entire article is reproduced as an appendix to this decision.
Therefore, on the same morning, before the beginning of the State's case in chief, the following conversation was had outside the presence of the jury:
"MR. MESSMAN [(Defense counsel)]: I would note for the record, at least to my recollection, the jury was not admonished not to read the paper, listen to the radio, watch TV; and media coverage was more extensive then [sic] what I thought it would be.
MR. MESSMAN: Maybe the court would want to explore with the jurors if they saw that.
THE COURT: Why would I want to do that. I might get the wrong answers. I will admonish them.
MR. MESSMAN: Okay. All right.
(The jury was brought in.)
THE COURT: *** [T]he media coverage in this case has been more than what I anticipated or I would have warned you about it and I suspect that some of you seen [sic] or read things about the case and [I] want to reemphasize your verdicts must be based solely on the evidence presented in open court and not on anything from any other sources. Those sources are not subject to the same strict standard that we are in terms of admissibility and reliability and so on. I am going to ask you throughout course of this trial to avoid listening to radio accounts or television accounts or anything about this case. I can't help it if you already have, if you had I would ask you to put that aside and base your decision, as a juror, solely on the evidence presented in court."
Following his convictions, Black apparently retained different counsel to pursue a direct appeal. Black's appellate counsel raised neither the trial court's refusal to poll the jury nor Messman's incompetence as part of that appeal. Black then retained further counsel to represent him at his post-conviction hearing, where he alleged the incompetence of both prior attorneys for failing to raise or follow through with the issue. At the post-conviction hearing, the trial court stated that the article "is not as prejudicial as I thought at the time. There are some things in there that are mildly prejudicial." Black is represented by the office of the State Appellate Defender (OSAD) before this court.
We first consider whether some aspects of Black's claims are forfeited (sometimes referred to as "waived"). Where an alleged forfeiture stems from ineffectiveness of appellate counsel, the weight of authority holds that the strict application of the doctrine will be relaxed (People v. Stencil, 306 Ill. App. 3d 273, 276, 713 N.E.2d 1228, 1230 (1999)), although some courts have noted in passing the ease with which forfeiture may then be avoided (see People v. Turner, 187 Ill. 2d 406, 412-13, 719 N.E.2d 725, 729 (1999)), thereby leading in extreme cases to "ineffective-assistance claims *** resembl[ing] an intricate puzzle of boxes, each but the largest nestled one within the others" (People v. Stewart, 141 Ill. 2d 107, 113, 565 N.E.2d 968, 971 (1990)). Black's case is fairly straightforward, however. He claims that his appellate counsel should have raised the publicity issue. Because he could not have raised appellate counsel's effectiveness at any time prior to the instant proceeding (which is technically not an appeal, but a collateral attack on the judgment (People v. Whitehead, 169 Ill. 2d 355, 370, 662 N.E.2d 1304, 1311 (1996))), we address the merits.
Ineffective assistance claims are decided under the familiar standard of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). A defendant such as Black, who maintains that appellate counsel rendered ineffective assistance by failing to raise a particular issue, must show that the failure to raise the issue was objectively unreasonable and that, but for this failure, his sentence or conviction would have been reversed. ...