Appeal from the Circuit Court of Cook County. No. 88 CR 1662 The Honorable Mary Ellen Coghlan, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cohen
Petitioner James Kluppelberg appeals from an order of the circuit court of Cook County granting the State's motion to dismiss his petition for post-conviction relief without an evidentiary hearing. We reverse and remand.
Petitioner was charged by indictment of eighteen counts of first degree murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3) (now codified, as amended, at 720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2000)), six counts of attempt (first degree murder) (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1) (now codified, as amended, at 720 ILCS 5/9-1(a)(1) (West 2000)) and three counts of arson (Ill. Rev. Stat. 1984, ch. 38, pars. 20-1(a) (now codified, as amended, at 720 ILCS 5/20-1(a) (West 2000)) stemming from a March 24, 1984 fire at 4448 South Hermitage that killed a mother and her five children. Following a bench trial, petitioner was convicted of six counts of first degree murder and three counts of arson and sentenced to natural life in prison. This court affirmed his conviction on direct appeal. People v. Kluppelberg, 257 Ill. App. 3d 516 (1993).
On October 6, 1994, petitioner filed a pro se petition for post-conviction relief (petition) pursuant to the Illinois Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1991)), claiming both that he received constitutionally ineffective counsel at trial as well as in his direct appeal and that he was denied his constitutional right to testify and his constitutional right to a trial by jury. In support of his claims, petitioner made a total of 25 allegations, including: (1) his trial counsel ignored his wishes to have a jury trial; (2) his trial counsel did not allow him to testify and confront his accusers; (3) his trial counsel failed to submit into evidence police reports classifying the fire as accidental; (4) his trial counsel failed to communicate with him concerning his appeal; (5) his appellate counsel failed to raise certain issues with regard to his trial counsel's ineffectiveness; and (6) his appellate counsel failed to file a petition for rehearing notifying the appellate court of its failure to address certain issues he made on appeal. Petitioner did not attach an affidavit or exhibits to his petition.
On October 18, 1994, the trial court appointed post-conviction counsel to represent petitioner. On August 4, 1998, the State filed a motion to dismiss the pro se petition alleging that the petition failed to raise any constitutional questions within the purview of the Act, or in the alternative, that the issues raised in the petition were either waived or barred by res judicata. On September 2, 1999, an amended petition was filed by an assistant public defender alleging that trial counsel: (1) refused to comply with petitioner's decision to have a jury trial; (2) refused to allow petitioner to testify on his own behalf; (3) failed to properly communicate with petitioner; and (4) failed to present the testimony of the Chicago bomb and arson unit investigators who determined that the fire was accidental. Attached to the amended petition as exhibits were the affidavit of petitioner, part of the trial transcript concerning jury waiver and a bomb and arson unit's "cause and origin" report dated March 25, 1984.
In his affidavit, petitioner declared that he informed his trial counsel on numerous occasions that he wanted a jury trial and wished to testify on his own behalf, but was told by his trial counsel to "not worry" and to "keep his mouth shut." Petitioner further stated that trial counsel threatened that if petitioner testified, trial counsel "would withdraw from [his] case and leave [petitioner] in the hands of a public defender." Petitioner also declared that he never met or talked with his trial counsel in a private setting, only having the opportunity to discuss his case with trial counsel in the "bull pen."
On September 23, 1999, the State filed a "Response to James Kluppelberg's Supplemental Petition for Post-Conviction Relief" which raised essentially the same objections as those set forth in its motion to dismiss. On October 6, 1999, petitioner filed a motion to set his amended petition for an evidentiary hearing and to strike portions of the State's "answer." A hearing was conducted later the same day. At the hearing, the trial judge determined that the document filed by the State on September 23, 1999, was not an "answer" to petitioner's amended petition, but rather a supplement to its previously filed motion to dismiss. A hearing was then conducted solely on the State's motion to dismiss.
The State argued that petitioner's claim that he had been denied his right to a jury trial had been waived. The State also argued that petitioner failed to demonstrate that he was denied his right to testify where the trial transcript revealed that at no point during the course of the trial did petitioner indicate to the court his desire to testify. The State further argued that petitioner's claim that his trial counsel failed to properly communicate with him was basically an ineffectiveness of counsel claim and referred the trial judge to the appellate court decision finding trial counsel effective. Finally, the State argued that petitioner's allegation of ineffectiveness for failure to elicit testimony that the fire was an accident had been waived and was a matter of "trial tactics" not subject to judicial review in post-conviction proceedings.
Petitioner's post-conviction counsel responded by drawing the court's attention to petitioner's affidavit. Post-conviction counsel emphasized the numerous occasions on which petitioner informed his trial counsel of his desire to have a jury trial and his desire to testify on his own behalf. Post-conviction counsel also emphasized the fact that petitioner's trial counsel never met with petitioner in a private setting despite the fact that petitioner was facing the death penalty. Post-conviction counsel further argued that a hearing conducted on a motion in limine filed by petitioner's trial counsel demonstrated that although trial counsel knew of a police report in which two Chicago police officers had determined that the fire was accidental, trial counsel had failed to call either police officer to testify during the trial. Post-conviction counsel, however, failed to attach a copy of this police report to the amended petition, failed to attach the transcript of the hearing on the motion in limine to the amended petition and failed to bring a copy of the transcript with him to the hearing on the State's motion to dismiss.
The trial judge granted the State's motion to dismiss petitioner's post-conviction petition, finding: (1) the bomb and arson unit's "cause and origin" report attached as an exhibit to the amended petition did not support petitioner's assertion that the fire was accidental; (2) there was no evidence presented in the amended petition to support the conclusion that the fire was accidental; (3) all issues raised in petitioner's post-conviction petition could have been raised on direct appeal; (4) the record reflected a valid jury waiver; and (5) the appellate court decision correctly determined that trial counsel was not ineffective. This appeal followed.
On appeal, petitioner alleges that he received inadequate representation in the post-conviction proceedings in violation of Supreme Court Rule 651(c) (134 Ill. R. 651(c)). Petitioner also alleges that he is entitled to an evidentiary hearing on the issues of his trial counsel's: (1) failure to communicate with him in a meaningful and private manner; (2) failure to present critical evidence that the cause of the fire was accidental; (3) failure to request a jury trial despite petitioner's numerous requests that counsel do so; and (4) refusal to allow him to testify on his own behalf. Petitioner further alleges that the trial court erred in determining that ...