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People v. McNeal

October 13, 2000


The opinion of the court was delivered by: Justice Miller

Agenda 3-November 1999.

The defendant, Aldwin McNeal, brought this action for post-conviction relief in the circuit court of Lake County. The circuit judge dismissed the petition without an evidentiary hearing. Because the defendant received the death penalty for the underlying first degree murder convictions, the defendant's appeal lies directly to this court. 134 Ill. 2d R. 651(a). We now affirm the judgment of the circuit court.

The offenses involved in this case arose from the deaths of two persons at a restaurant in Waukegan on April 7, 1994. According to the evidence presented at trial, the defendant and an accomplice, James Woods, entered Maude's Pizza around 11:30 in the evening. Two persons who were present in the restaurant, Cory Gerlach and Perry Austin, were shot and killed. The defendant was subsequently convicted, in a jury trial in the circuit court Lake County, of three counts of first degree murder and one count of armed robbery with respect to each victim. The same jury later determined that there were no mitigating circumstances sufficient to preclude a sentence of death, and the defendant was therefore sentenced to death for the first degree murder convictions. The judge concluded that the two armed robbery convictions merged and sentenced the defendant to 30 years' imprisonment on one of the convictions. On appeal, this court affirmed the defendant's convictions and sentences. People v. McNeal, 175 Ill. 2d 335 (1997). The United States Supreme Court later denied the defendant's petition for a writ of certiorari. McNeal v. Illinois, 522 U.S. 917, 139 L. Ed. 2d 235, 118 S. Ct. 304 (1997).

While the defendant's direct appeal was pending before this court, the defendant began the present action in the circuit court of Lake County, filing a pro se petition for post-conviction relief. Counsel was later appointed to represent the defendant in the matter. Shortly after this court issued its opinion on direct appeal, appointed counsel filed an amended post-conviction petition. Counsel later filed second and third amended petitions, with each new petition incorporating its predecessors and raising additional grounds for relief. The circuit judge initially dismissed all but one of the defendant's post-conviction claims without an evidentiary hearing; the judge allowed the defendant limited discovery with respect to the reserved issue, which concerned a potential conflict of interest involving one of the defendant's trial lawyers. After discovery, the defendant did not submit any further evidence on the matter, however, and the post-conviction judge then dismissed that additional claim as well. The present appeal followed. 134 Ill. 2d R. 651(a).

The Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-7 (West 1996)) provides a method by which a defendant may challenge his conviction or sentence for violations of federal or state constitutional rights. People v. Tenner, 175 Ill. 2d 372, 377 (1997). An action for post-conviction relief is a collateral proceeding, not an appeal from the earlier judgment. People v. Williams, 186 Ill. 2d 55, 62 (1999). To be entitled to post-conviction relief, a defendant must demonstrate a substantial deprivation of federal or state constitutional rights in the proceedings that produced the conviction or sentence being challenged. People v. Morgan, 187 Ill. 2d 500, 528 (1999). Considerations of res judicata and waiver limit the scope of post-conviction relief "to constitutional matters which have not been, and could not have been, previously adjudicated." People v. Winsett, 153 Ill. 2d 335, 346 (1992). Thus, issues that were raised on appeal from the underlying judgment of conviction, or that could have been raised but were not, generally will not be considered in a post-conviction proceeding. People v. West, 187 Ill. 2d 418, 425 (1999).

The principal issue in this appeal involves the representation of the defendant at the post-conviction proceedings below. In addition, the defendant argues that the suppression of a co-defendant's confession in a separate prosecution now requires the suppression in this case of evidence obtained as a result of the co-defendant's statement. Finally, the defendant raises a number of issues in pro se materials he has filed with this court. We will address these contentions in turn.

The defendant first argues that the cause must be remanded for further proceedings because post-conviction counsel did not provide him with a reasonable level of assistance in the circuit court. Specifically, the defendant complains that post-conviction counsel filed only an incomplete report from an investigator about additional mitigating evidence in this case and failed to request additional time so that the report could be completed. The defendant believes that post- conviction counsel should have submitted a complete report and should have requested additional time, if necessary, for that purpose.

The report that is at the center of this issue was prepared by Amy Watson, a forensic social worker for the capital litigation division of the appellate defender's office. In the report, prepared August 15, 1997, she set out her preliminary findings, which she had acquired from a review of certain records in this case and from interviews with several persons, including the defendant, his mother, and one of his aunts. Watson stated that a number of other witnesses should also be interviewed, and that a number of different areas of inquiry should be explored, including the defendant's neurological impairments, prenatal problems, and head injuries. The report also stated that Watson believed she needed more time to complete the tasks. In an affidavit, Watson stated that the information regarding the mitigating evidence presented at the defendant's sentencing hearing was not made available to her until August 5, 1997, when she received only summaries of the mitigation testimony. At a hearing on August 19, 1997, post-conviction counsel's law partner appeared on counsel's behalf, explaining that counsel could not be present that day. In discussing the social worker's report, the lawyer did not request additional time so that the research mentioned in the report could be completed. The defendant now argues that he did not receive the minimum level of assistance guaranteed to post-conviction petitioners, for counsel failed to file a complete report and failed also to request additional time so that the report could be finished.

There is no constitutional right to counsel in post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 546, 107 S. Ct. 1990, 1993 (1987); People v. Moore, 189 Ill. 2d 521, 541 (2000). An indigent defendant who has been sentenced to death is entitled, under section 122-2.1(a)(1) of the Post-Conviction Hearing Act, to representation in proceedings under the Act. 725 ILCS 5/122-2.1(a)(1) (West 1996). Because the source of the right to counsel in a post-conviction matter is statutory rather than constitutional, the degree of skill and care that a lawyer must exercise in representing a post-conviction petitioner is not controlled by the sixth amendment standard announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Rather, a post- conviction petitioner is entitled only to the level of assistance guaranteed by the Act. This court has determined that to be a "reasonable" level of assistance. People v. Turner, 187 Ill. 2d 406, 410 (1999); People v. Guest, 166 Ill. 2d 381, 412 (1995); People v. Flores, 153 Ill. 2d 264, 276 (1992); People v. Owens, 139 Ill. 2d 351, 364 (1990).

Toward that end, Supreme Court Rule 651(c) sets out certain requirements that counsel must fulfill in representing post-conviction petitioners. Rule 651(c) provides:

"Upon the timely filing of a notice of appeal in a post- conviction proceeding, if the trial court determines that the petitioner is indigent, it shall order that a transcript of the record of the post-conviction proceedings, including a transcript of the evidence, if any, be prepared and filed with the clerk of the court to which the appeal is taken and shall appoint counsel on appeal, both without cost to the petitioner. The record filed in that court 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 right, 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).

In the case at bar, post-conviction counsel filed a certificate of compliance under Rule 651(c) when he submitted the defendant's first amended post-conviction petition. The certificate recited that counsel had consulted with the defendant "to ascertain his contentions of deprivation of constitutional right," that counsel had "examined the record of the proceedings at the trial," and that counsel had "made any necessary amendments to the petition filed pro se."

We believe that the defendant received the reasonable level of assistance of counsel required by the Post-Conviction Hearing Act, notwithstanding counsel's submission of a report that the preparer said was incomplete. First, the certificate of compliance submitted by post- conviction counsel demonstrated that counsel satisfied the requirements of Rule 651(c). According to the certificate, post-conviction counsel reviewed the defendant's pro se petition, discussed the case with the defendant, and shaped the defendant's contentions into coherent arguments. We note that counsel also added arguments that the defendant did not make in his pro se petition; the defendant's first amended petition, second amended petition, and third amended petition all contained arguments that were not raised in the defendant's original, pro se, petition. Moreover, the defendant's pro se petition did not raise any issue concerning the mitigating evidence introduced at the capital sentencing hearing, and appointed counsel did not raise this contention until he filed the third amended petition, in August 1997. Counsel's delay in presenting the issue may simply indicate its relative lack of merit.

In addition, we note that much of the evidence referred to in the investigator's report had already been introduced at the defendant's sentencing hearing. The judge who decided the defendant's post- conviction case had also presided at the defendant's trial and sentencing hearing, and therefore was well aware of what evidence the defendant had introduced in mitigation at the sentencing hearing. In rejecting this ground for relief, the ...

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