The opinion of the court was delivered by: Justice McBRIDE
Appeal from the Circuit Court of Cook County
Honorable Thomas M. Davy, Judge Presiding.
In April of 1987, petitioner Anthony Jones was found guilty by a jury of the murder of his 93-year-old great-grandmother Estella Small and the aggravated battery of Ms. Small's 61-year-old caregiver, Dorothy Hill. Jones was sentenced to an extended term of 80 years' imprisonment for the murder and a concurrent term of 5 years for the aggravated battery. These judgments were affirmed on direct appeal by this court in an unpublished order. People v. Jones, 187 Ill. App. 3d 1123 (1989).
Since that order was entered Jones has sought post conviction relief on more than one occasion pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)).
Two of Jones' post conviction challenges have been unsuccessful on appeal to this court, People v. Jones, No. 1-95-0207 (1995) (unpublished order under Supreme Court Rule 23), and People v. Jones, No. 1-96-2486 (1996) (unpublished order under Supreme Court Rule 23). In one of those orders, No. 1-95-0207, this court found the previous petition untimely.
The current appeal stems from the dismissal of what Jones and the respondent (State) both agree is Jones' sixth post conviction petition. The subject petition, dated January 7, 1997, was filed on January 29, 1997. On January 31, 1997, the trial judge dismissed the petition on grounds that the circuit court lacked jurisdiction because one of petitioner's previous post conviction petitions was still pending on appeal at the time of the filing of the instant petition.
Neither Jones nor the State has specifically addressed the grounds upon which the trial judge dismissed the petition. Instead both have proceeded under the theory that the petition was dismissed without an evidentiary hearing because it failed to allege the gist of a constitutional claim.
As noted earlier, the current petition represents Jones' sixth effort at post conviction relief. The pro se petition alleges that numerous errors occurred during Jones' trial. Jones also filed a memorandum of law in support of his claims. We will discuss only those claims that are raised by Jones in this appeal. People v. Coleman, 183 Ill. 2d 366, 378, 701 N.E.2d 1063, 1070 (1998).
Jones contends that the trial court improperly dismissed the petition without an evidentiary hearing. He argues that although his petition was untimely, and successive, fundamental fairness requires an evidentiary hearing and appointment of counsel on this sixth petition because it stated the gist of a substantial constitutional claim. More specifically, Jones claims that the trial court violated his constitutional rights when it failed to conduct a fitness hearing based upon his alleged ingestion of the psychotropic drug Haldol at or near the time of his trial and sentencing. Jones also claims his appointed post conviction counsel was ineffective because the attorney never amended a previous petition to include the issue of fitness to stand trial based upon his ingestion of psychotropic medications. Thus, Jones claims he was entitled to an evidentiary hearing. For this proposition he relies primarily on People v. Neal, 179 Ill. 2d 541, 689 N.E.2d 1040 (1997).
The State cites numerous reasons for affirming the dismissal of the sixth petition, but does not discuss the reason given by the trial judge as the basis for the dismissal. The State argues that the sixth petition is untimely and that Jones has not alleged facts demonstrating his lack of culpable negligence. Citing People v. Whitehead, 169 Ill. 2d 355 (1996), and People v. Coleman, 168 Ill. 2d 509 (1995) the State additionally argues that principles of waiver and res judicata bar consideration of the issues because Jones could have raised the question of fitness with medication in the prior petitions. The State further argues that Jones' allegations that he was taking Haldol at or near the time of trial or sentencing are not supported by the medical records he relies upon and that fundamental fairness does not dictate a relaxation of the waiver rule in this particular case given these particular facts. Although neither Jones nor the State has addressed the trial court's reasons for dismissing the petition, we believe the trial court could have properly dismissed Jones' petition where a previous post conviction petition had not yet been resolved. See People v. Lieberman, 186 Ill. App. 3d 277, 281, 542 N.E.2d 894 (1989). We note that the record before us does not indicate whether a previous petition was pending when Jones filed this current petition. Additionally, because the parties have fully briefed the issues and both sides agree that the petition was dismissed without an evidentiary hearing, we will address the merits of this appeal.
We agree with the State that Jones' claims are barred because the petition is untimely, that the fitness issue raised in this sixth petition is barred by principles of waiver and res judicata, that Jones' claim he was taking psychotropic drugs at the time of his trial and sentencing is not supported by the record, and that fundamental fairness would not suggest a relaxation of those rules in this particular case so as to permit consideration of any of Jones' claims. People v. Flores, 153 Ill. 2d 264, 606 N.E.2d 1028 (1992). However, we also conclude that neither of the issues raised by Jones amounts to a cognizable constitutional claim. Several recent decisions by our supreme court have resolved the fitness issue so we will address that question first.
In a series of decisions beginning with People v. Mitchell, 189 Ill. 2d 312, 727 N.E.2d 254 (2000), the supreme court held that an allegation the trial court violated petitioner's due process rights when it failed to conduct a fitness hearing based upon petitioner's ingestion of psychotropic drugs is not a cognizable constitutional claim in a post conviction proceeding. Mitchell, 189 Ill. 2d at 328-29. In Mitchell, our supreme court stated:
"Due process does not require that everyone taking 'psychotropic or other medication' under medical direction should be granted a fitness hearing. Section 104-21(a)'s provision is merely a statutory right granted by the legislature -- a right that the legislature has now taken away. See 725 ILCS 5/104- 21(a) (West 1998). Statutes do not confer constitutional rights, and the allegation of a deprivation of a statutory right is not a proper claim under the [Post-Conviction Hearing] Act." Mitchell, 189 Ill. 2d at 329.
In People v. Jones, 191 Ill. 2d 194, 730 N.E.2d 26 (2000), the court reiterated Mitchell's holding that the trial court's failure to conduct a fitness hearing after an allegation of petitioner's ingestion of psychotropic drugs at the time of trial is not a cognizable constitutional ...