Appeal from the Circuit Court of Lake County. No. 95-CF-2665 Honorable Victoria A. Rossetti, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Hutchinson
Released for publication.
In 1995 defendant, Tyrellis D. Wright, was indicted on two counts of first-degree murder (see 720 ILCS 5/9--1(a)(1), (a)(2) (West 1994)). The State sought to prove that defendant, who was angry at the victim, Ami Faro, for interfering with his relationship with a girlfriend, lured the victim to a building where his grandmother lived and thereafter strangled the victim and bludgeoned her to death with a fire extinguisher. In 1997 a jury convicted defendant of committing the offense. At the sentencing hearing, the trial court found that the murder was accompanied by brutal and heinous behavior indicative of wanton cruelty, and it imposed an extended-term sentence of 85 years' imprisonment. On direct appeal, this court affirmed defendant's conviction and sentence. See People v. Wright, No. 2--97--0444 (June 24, 1999) (unpublished order under Supreme Court Rule 23). Our supreme court denied defendant's petition for leave to appeal. See People v. Wright, 185 Ill. 2d 664 (1999).
In February 2000 defendant, through counsel, filed a post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2000)); defendant later, and again through counsel, filed an amended post-conviction petition and a second amended post-conviction petition. The trial court summarily dismissed defendant's second amended post-conviction petition as patently without merit, and defendant filed a timely notice of appeal.
In November 2000 defendant pro se filed a petition for post-conviction relief, alleging that the trial court's imposition of his 85-year sentence violated the principles announced in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). In January 2001 the trial court found that Apprendi did not apply retroactively to proceedings brought pursuant to the Act and dismissed defendant's petition. Defendant filed a timely notice of appeal. On defendant's motion we have consolidated these appeals, and we now affirm.
In case No. 2--00--0670, defendant raises two issues: whether his due process rights were violated when the trial court ruled on the merits of his petition without providing defense counsel notice or an opportunity to argue the claims, and whether the trial court erred in summarily dismissing the ineffective assistance of counsel claim against his trial counsel. In case No. 2--01--0190, defendant presents the issue of whether his extended-term sentence violates the principles announced in Apprendi.
The Act provides a mechanism by which criminal defendants can assert that their convictions were the result of a substantial denial of their constitutional rights. See 725 ILCS 5/122-1 et seq. (West 2000). In a post-conviction proceeding, the trial court does not redetermine a defendant's innocence or guilt but instead examines constitutional issues that escaped earlier review. People v. Rogers, 197 Ill. 2d 216, 221 (2001), citing People v. Evans, 186 Ill. 2d 83, 89 (1999). A post-conviction petition is a collateral attack upon a prior conviction and sentence and not a substitute for or an addendum to a direct appeal. Rogers, 197 Ill. 2d at 221, citing People v. West, 187 Ill. 2d 418, 425 (1999). The petitioner in a post-conviction hearing is not entitled to an evidentiary hearing as of right. People v. Hobley, 182 Ill. 2d 404, 427-28 (1998). To be entitled to post-conviction relief, the petitioner bears the burden of establishing a substantial deprivation of federal or state constitutional rights. People v. King, 192 Ill. 2d 189, 192 (2000). The purpose of the proceeding is to resolve allegations that constitutional violations occurred at trial, when those allegations have not been, and could not have been, adjudicated previously. King, 192 Ill. 2d at 192-93. Consequently, any issues that were decided on direct appeal are barred by res judicata; any issues that could have been raised on direct appeal are forfeited. Rogers, 197 Ill. 2d at 221, citing West, 187 Ill. 2d at 425. Our standard of review of a trial court's dismissal of a post-conviction petition without an evidentiary hearing is de novo. People v. Fair, 193 Ill. 2d 256, 260 (2000), citing People v. Coleman, 183 Ill. 2d 366, 387-89 (1998).
In the present case, defendant contends that he was denied notice and an opportunity to argue his claims when the trial court summarily dismissed his petition. Defendant argues that, because he was represented by counsel, his petition had effectively advanced to the second stage. See 725 ILCS 5/122-4 (West 2000). Defendant further argues that, when the trial court granted defense counsel's motion for leave to amend the post-conviction petition, the trial court treated the proceedings as having advanced to the second stage, that is, the stage at which counsel is allowed to file an amended petition. See 725 ILCS 5/122-5 (West 2000). Defendant's arguments lack merit.
Proceedings under the Act are commenced by the filing of a petition in the circuit court in which the original proceeding took place. 725 ILCS 5/122-1(b) (West 2000). In the present case, defendant, through counsel, filed a petition for post-conviction relief on February 10, 2000. Defendant's argument seems to propound the rule that, because he was represented by counsel, the first-stage proceedings were nonexistent and second-stage proceedings commenced at the time counsel initially filed the post-conviction petition. We find no authority in the Act or in the record to confirm defendant's claim. The Act provides that, if the petition is not dismissed as frivolous or patently without merit and defendant, because of indigency, requests counsel, the trial court shall appoint counsel. 725 ILCS 5/122-4 (West 2000). The record also reflects defense counsel's full understanding of the procedural steps involved. On February 17, 2000, defense counsel appeared before the trial court, presented the petition, and asked for a date for status. Defense counsel also indicated to the trial court that it had some time to determine whether the motion itself was frivolous. The trial court proposed that the matter be decided by the judge who presided over defendant's trial and continued the matter for status. Despite defendant's argument to the contrary now, the record clearly reflects a first-stage proceeding.
Likewise, defendant's second argument fails. Defendant argues that, when the trial court granted leave for defendant to file a second amended post-conviction petition and set the cause for status, the cause advanced to the second stage. Defendant asserted that, at that point, his counsel had every reason to expect that he would eventually be able to argue the merits of the post-conviction petition. Although the Act contemplates only one filing of a post-conviction petition, it allows for amendments of the petition. See 725 ILCS 5/122-3, 122-5 (West 2000); People v. Watson, 187 Ill. 2d 448 (1999); People v. Whitehead, 169 Ill. 2d 355, 368 (1996). The Watson court recognized the statutory authority providing for amendments to post-conviction petitions and further held that the filing of an amended post-conviction petition restarts the 90-day summary review period for a trial court to determine whether the petition warranted summary dismissal. Watson, 187 Ill. 2d at 451.
In the present case, defendant filed an amended petition on April 13, 2000. On April 28, 2000, defense counsel appeared before the trial court for status. He sought leave to file defendant's affidavit and leave to file a second amended post-conviction petition with additional affidavits. The trial court granted defense counsel leave to file the petition and accompanying affidavits by May 3 and set the cause for May 12. On May 12, 2000, defense counsel stated that the cause was up for status, informed the trial court of the documents on file, and asked for a "date." The trial court responded as follows:
"THE COURT: The Court is already in the process of responding to the petitions and so let's set it for status. Let's go to June 9th, 9:00 AM. It's not for hearing, it's just for status."
Defense counsel acknowledged his understanding of the trial court's response. Further, on June 9, defense counsel noted that the trial court had dismissed defendant's petition, and he asked the trial court to appoint the office of the Appellate Defender to represent defendant on appeal. Defense counsel stated that defendant's family and friends had paid his firm but they lacked the funds to pursue defendant's appeal. The trial court thereafter ordered the appointment of an appellate defender for defendant.
Based on our review of the record, defendant's claim that his second amended post-conviction petition had effectively proceeded to the second stage because the trial court allowed him ...