The opinion of the court was delivered by: Justice Miller
Docket No. 85409-Agenda 28-May 2000.
The defendant, Larry Scott, brings this appeal from an order of the circuit court of Cook County denying his petition for post-conviction relief. Because the defendant received the death sentence for the underlying murder conviction, the present appeal lies directly to this court. 134 Ill. 2d R. 651(a). For the reasons that follow, we affirm the judgment of the circuit court.
The defendant was charged with a number of offenses for the murder and sexual assault of a woman in Chicago in August 1984. Following a trial in the circuit court of Cook County, a jury found the defendant guilty of murder and attempted robbery and guilty but mentally ill of aggravated criminal sexual assault. After a bench sentencing hearing, the trial judge sentenced the defendant to death for the murder conviction and to 30 years' imprisonment for the aggravated criminal sexual assault conviction; the judge did not sentence the defendant on the attempted robbery conviction. On direct appeal this court affirmed the defendant's convictions and sentences. People v. Scott, 148 Ill. 2d 479 (1992). The United States Supreme Court denied the defendant's petition for a writ of certiorari. Scott v. Illinois, 507 U.S. 989, 123 L. Ed. 2d 156, 113 S. Ct. 1590 (1993).
The defendant then initiated the present post-conviction action in the circuit court of Cook County, challenging his convictions and death sentence on a variety of grounds. The post-conviction court allowed the defendant an evidentiary hearing on one of the issues raised in the petition, concerning the defendant's remorse for the offenses; after the hearing, the judge denied all relief. The defendant brings the present appeal to this court (134 Ill. 2d R. 651(a)), contesting the circuit court's decision.
The Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-7 (West 1994)) allows a defendant to challenge a conviction or sentence for violations of federal or state constitutional rights. People v. Thompkins, 161 Ill. 2d 148, 157 (1994). An action for post-conviction relief is a collateral proceeding rather than an appeal from the underlying judgment. People v. Williams, 186 Ill. 2d 55, 62 (1999). To be entitled to post-conviction relief, a defendant must establish a substantial deprivation of federal or state constitutional rights in the proceedings that led to the judgment being challenged. 725 ILCS 5/122-1 (West 1994); People v. Morgan, 187 Ill. 2d 500, 528 (1999). Principles of res judicata and waiver will limit the range of issues available to a post-conviction petitioner "to constitutional matters which have not been, and could not have been, previously adjudicated." People v. Winsett, 153 Ill. 2d 335, 346 (1992). Accordingly, rulings on issues that were previously raised at trial or on direct appeal are res judicata, and issues that could have been raised in the earlier proceedings, but were not, will ordinarily be deemed waived. People v. Tenner, 175 Ill. 2d 372, 378 (1997); People v. Coleman, 168 Ill. 2d 509, 522 (1995).
The defendant's primary focus in this appeal, as it was in the proceedings below, is on what effect his remorse for the offenses should have on his death sentence. The defendant argues that trial counsel was ineffective for failing to present, at the capital sentencing hearing, evidence of the defendant's remorse. The defendant observes that the sentencing judge, in deciding to impose the death penalty in this case, found that there were no mitigating circumstances at all in this case; at sentencing, the judge said that the evidence did "not disclose one single iota of a mitigating factor." The defendant further contends that remorse is recognized as a mitigating circumstance in death penalty jurisprudence and that the evidence introduced at the post-conviction hearing demonstrates that he was remorseful for these offenses. The defendant deduces from these propositions that he must receive a sentence other than death, given the presence of remorse in this case.
To prevail on a claim of ineffective assistance of counsel, a defendant must establish both that counsel's performance was so deficient that it fell below an objective standard of reasonableness, and that the defendant was so prejudiced by counsel's conduct that he was denied a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064-65 (1984). To satisfy the second part of the Strickland test, a defendant must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
At the post-conviction hearing, the defendant testified briefly about his feelings regarding these offenses. The focus of his testimony was his belief that he deserved the death sentence because of the crimes he had committed. On direct examination, defense counsel asked the defendant first about his feelings at the time of trial, and then about his feelings at the time of the evidentiary hearing:
"Q. How did you then feel about what you did? Whether it was right or wrong, how did you feel about it?
A. I feeled [sic] like it was wrong.
Q. How do you feel about it today?
Q. Do you feel that it was wrong just for you or wrong for the lady you killed and her family? Do you have any remorse? Did you have any remorse then? What do you feel?
A. I feel the same way I did, that it was wrong.
A. It was wrong enough to get the death ...