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People v. Pitsonbarger

May 23, 2002


The opinion of the court was delivered by: Justice Garman


Docket No. 89368 - Agenda 5-May 2001.

Petitioner, Jimmy Ray Pitsonbarger, appeals from orders of the circuit court of Peoria County dismissing 34 of the 35 claims raised in his second post-conviction petition and denying the sole remaining claim after an evidentiary hearing. Because petitioner was sentenced to death for the underlying convictions, his 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.


This court has previously described the facts underlying petitioner's conviction and sentencing in our opinion on his direct appeal. See People v. Pitsonbarger, 142 Ill. 2d 353 (1990). Thus, we will summarize here only the proceedings that have occurred since his conviction.

In 1988, petitioner was convicted in a bench trial of the murders of Claude and Alta Brown. The death penalty hearing was held before a jury, which found the petitioner eligible for the death penalty based on the presence of two aggravating factors, and further found that no mitigating factors sufficient to preclude imposition of the death penalty were present. The circuit court sentenced petitioner to death. On direct appeal, this court addressed 14 separate claims of error, affirmed two convictions for intentional murder, vacated four convictions for felony murder, and affirmed the sentence of death. Pitsonbarger, 142 Ill. 2d 353. Petitioner's petition for a writ of certiorari to the United States Supreme Court was denied. Pitsonbarger v. Illinois, 502 U.S. 871, 116 L. Ed. 2d 163, 112 S. Ct. 204 (1991).

In April 1992, petitioner filed a post-conviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1992)). The circuit court dismissed the petition without an evidentiary hearing, finding that all seven of the claims raised were either barred by res judicata, because they had already been addressed on direct appeal, or waived, because they had not been raised on appeal even though they were available to be raised. Counsel filed a "Motion to Reconsider and Vacate" in May 1992, which the circuit court denied almost 11 months later. The clerk of the court did not give notice of this decision to counsel. Thus, when counsel filed a "Motion to File Late Notice of Appeal" in November 1993, the motion was granted. However, after counsel failed to timely file a brief, this court denied various motions for extensions of time and for reconsideration and eventually dismissed the matter for want of prosecution in June 1994.

Petitioner filed a petition for habeas corpus relief in March 1995, in the United States District Court for the Central District of Illinois, raising 11 claims. The district court issued an unpublished decision on October 5, 1995, denying habeas relief. On appeal, the United States Court of Appeals for the Seventh Circuit affirmed the district court's decision. Pitsonbarger v. Gramley, 103 F.3d 1293 (7th Cir. 1997). That judgment was vacated by the United States Supreme Court in Pitsonbarger v. Gramley, 522 U.S. 802, 139 L. Ed. 2d 6, 118 S. Ct. 37 (1997) (vacating and remanding for reconsideration in light of Lindh v. Murphy, 521 U.S. 320, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997)). The court of appeals thereafter entered a revised decision, again affirming the denial of habeas relief. Pitsonbarger v. Gramley, 141 F.3d 728 (7th Cir. 1998). The Supreme Court denied petitioner's petition for a writ of certiorari. Pitsonbarger v. Gramley, 525 U.S. 984, 142 L. Ed. 2d 402, 119 S. Ct. 448 (1998).

On February 28, 1996, while his appeal was pending before the Seventh Circuit, petitioner filed a second post-conviction petition in the circuit court of Peoria County, raising 35 claims of error. The State responded by filing a motion to dismiss on the basis that the entire petition was time-barred under the statute of limitations contained in section 122-1 of the Act (725 ILCS 5/122-1 (West 1996)). In the alternative, the State argued that all 35 claims were either waived by petitioner's failure to raise them in earlier proceedings or barred by res judicata. Petitioner responded that his first post-conviction proceeding was "fundamentally flawed" due to its virtual "abandonment" by post-conviction counsel and, thus, consideration of the claims raised in his second post-conviction petition was not barred by section 122-1 or by the waiver provision contained in section 122-3 of the Act (725 ILCS 5/122-3 (West 1996)). Therefore, he argued, all 35 issues should be addressed. In addition, petitioner argued that one claim in particular-his claim that he was denied a fitness hearing in 1988 due to ineffective assistance of counsel-should be addressed on the merits. Following a hearing on the State's motion on October 31, 1997, the circuit court ruled that "only those paragraphs in the Petition that are directed toward *** the issue of fitness need be answered and the Petition is dismissed in other regards." The State then filed an answer addressing the sole surviving claim, which was the subject of an evidentiary hearing on April 11, 2000.

At the evidentiary hearing, the parties stipulated that prior to and during petitioner's bench trial he was taking psychotropic medication, specifically 10 milligrams of Librium three times a day. Petitioner argued that this fact alone is sufficient to put the burden on the State to prove that he had been fit to stand trial in 1988. Further, petitioner argued that he should be given a new trial because a retrospective fitness hearing more than a decade later could not meet due process standards. Other than stipulating to the contents of the medication records, the petitioner introduced no evidence and presented no testimony.

The State argued that the mere fact petitioner was receiving medication is not sufficient to require a new trial. Rather, he must demonstrate that trial counsel was ineffective for failing to request a fitness hearing and appellate counsel was ineffective for failing to raise the issue on direct appeal. According to the State, petitioner could prevail on these claims only by demonstrating he would have been found unfit to stand trial if he had been given a fitness hearing in 1988, and he had failed to make the required showing. When the circuit court again denied the State's request to dismiss this claim, the State called two witnesses.

Robert E. Chapman, M.D., a psychiatrist who interviewed petitioner in 1988 to evaluate his fitness to stand trial and the applicability of insanity or intoxication as defenses, testified that he was aware during his interview with petitioner that he had been receiving three 10-milligram doses of Librium per day. Chapman described Librium as "an anti-anxiety medication" and "a minor tranquilizer." During the interview, Chapman found petitioner "oriented, alert, cooperative, [and] inquisitive." Petitioner "showed no evidence of psychosis or other symptoms of a severe mental disease or mental disorder." Further, he showed no evidence of drug side effects such as slurring of speech or staggering or other gait disturbance. Petitioner did not report insomnia or other sleep disturbances. Chapman found petitioner's behavior appropriate and his thought processes intact. Asked for his opinion, within a reasonable degree of medical certainty, of petitioner's fitness to stand trial in 1988, Chapman testified that petitioner "was fit." When specifically asked if that opinion took into account that petitioner was taking Librium at the time, Chapman responded, "Yes."

On cross-examination, Chapman stated that his opinion as to petitioner's fitness for trial in 1988 would not be altered by learning that he subsequently attempted suicide. He also acknowledged that one of the effects of Librium is to cause the patient to be subdued or quiet or to have an emotionless expression, and that the patient might tend to become withdrawn from other people. However, Chapman explained that these effects occur only if the dosage of Librium is "approaching toxic levels." When asked by the court to clarify, Chapman explained that one would have to take "hundreds of milligrams a day" before experiencing these effects.

Phillip Jobe, Ph.D., a professor of pharmacology at the University of Illinois College of Medicine in Peoria, explained that Librium is used primarily for treatment of anxiety as well as to treat insomnia. Jobe was asked to describe, to a reasonable degree of scientific certainty, the effect on a 24- to 25-year-old male, weighing approximately 165 pounds, of three 10-milligram doses of Librium per day. Jobe stated that such a dosage would not impair that person's ability to understand the nature of charges against him or to understand legal proceedings. Further, it would not impair the person's abilities to communicate with counsel, to observe, recollect, or relate occurrences, or to control his motor processes, including facial expressions. Jobe was also asked how long Librium would remain in the system of a 165-pound male after the medication was discontinued. Jobe explained that the drug, including its metabolites, would "essentially [be] gone from most people in ten days to 15 days" and that the drug would be "active" for a much shorter period.

Jobe acknowledged on cross-examination that Librium's side effects include confusion, drowsiness, fainting, and nausea, and "[i]f the dose were sufficiently high," Librium could cause an impairment in decisionmaking ability. When asked if Librium could have a "different effect" on a person, such as petitioner, with a history of alcohol dependence or in alcohol withdrawal, Jobe explained that Librium is actually "useful in the management of alcohol abstinence syndrome."

Following the testimony of these two witnesses, the court took judicial notice of the testimony of Mortimer Beck, M.D., in the transcript of petitioner's sentencing hearing. Beck, who conducted a psychiatric evaluation of petitioner prior to Chapman's evaluation, is the doctor who prescribed the Librium. Petitioner began receiving the medication the day after his interview with Beck. Thus, Beck's evaluation of petitioner occurred prior to his receiving any medication. Beck found petitioner fit to stand trial.

The record before the circuit court as it considered the testimony of the State's witnesses documented the following sequence of events regarding petitioner's treatment with Librium: April 21, 1988, evaluation by Dr. Beck, who found petitioner fit to stand trial and prescribed the medication; April 22, 1988, medication began; June 13, 1988, evaluation by Dr. Chapman, who also found petitioner fit to stand trial; June 22-23, 1988, bench trial; June 29, 1988, medication terminated because petitioner refused further doses; July 4, 1988, petitioner attempted suicide by ingesting caustic cleaning fluid; September 17, 1988, sentencing hearing began. The court also took judicial notice of records indicating petitioner's age, height, and weight at the time he was taking Librium, which were consistent with the hypothetical questions posed to the witnesses.

Based on this evidence, the circuit court concluded that "[t]here never was a bona fide doubt of the petitioner's fitness to stand trial raised at the time of the trial or the sentencing hearing." The court stated that it would find trial counsel ineffective for failing to request a fitness hearing only if petitioner demonstrated "a reasonable probability that if a fitness hearing had been held back in 1988, he would have been found unfit to stand trial." The court then held that petitioner had not only failed to show a reasonable probability, he offered "no evidence at all that he would have been found unfit." Finally, appellate counsel's failure to raise this issue on direct appeal was "not objectively unreasonable." "Accordingly," the court ruled, "all of the claims that survived [the] October 31, 1997, order are now denied."

In the present appeal, petitioner raises three claims of constitutional error, having abandoned 32 of the 35 claims contained in his second post-conviction petition. First, he argues that his sentencing hearing was unfair because the State improperly used peremptory challenges to excuse jurors who expressed reservations about imposing the death penalty. Second, he claims he was deprived of a fair sentencing hearing because two members of the jury engaged in private deliberations. Third, petitioner asserts that the circuit court erred when, after holding an evidentiary hearing, it rejected his claims of ineffective assistance of trial counsel based on failure to request a fitness hearing and ineffective assistance of appellate counsel based on failure to raise that issue on appeal.

These three issues are before this court for the first time, over 10 years after we affirmed petitioner's conviction and sentence on direct appeal. The State urges us to find petitioner's entire second post-conviction petition time-barred under section 122-1 of the Act (725 ILCS 5/122-1 (West 1996)) and to find further that consideration of these three issues is barred by the waiver provision of section 122-3 of the Act (725 ILCS 5/122-3 (West 1996)). The State also argues that the circuit court properly concluded petitioner would not have been found unfit to stand trial if a fitness hearing had been held at that time. Petitioner responds that his first post-conviction proceeding was fundamentally flawed because he did not receive a reasonable level of assistance of counsel and, therefore, it should not stand as a bar to a subsequent petition, the Act's limitations and waiver provisions notwithstanding.


The Act provides a remedy to a criminal defendant whose federal or state constitutional rights were substantially violated in his original trial or sentencing hearing. People v. Towns, 182 Ill. 2d 491, 502 (1998). In capital cases, post-conviction proceedings are governed by section 122.2-1(b) of the Act (725 ILCS 5/122.2-1(b) (West 1996)), which requires the circuit court to initially determine "whether the petitioner, if indigent, wants to be represented by counsel. After the petitioner makes that choice, the matter is then docketed for further proceedings." People v. Thomas, 195 Ill. 2d 37, 40 (2001). The State must then either answer the petition or move to dismiss it. 725 ILCS 5/122-5 (West 1996); Thomas, 195 Ill. 2d at 40. Unless the petition is disposed of on a motion to dismiss, the circuit court, considering the petition and the State's answer, determines whether a hearing is required because the allegations of the post-conviction petition, supported by the trial record and accompanying affidavits, make a substantial showing of a violation of a constitutional right. If not, the petition may be dismissed. If the petition does make a substantial showing of a constitutional violation, the matter proceeds to an evidentiary hearing. People v. Hobley, 182 Ill. 2d 404, 428 (1998). For purposes of determining whether an evidentiary hearing is warranted, all well-pleaded facts in the petition and in any supporting affidavits are to be taken as true. People v. Caballero, 126 Ill. 2d 248, 259 (1989).

Because this is a collateral proceeding, rather than an appeal of the underlying judgment, a post-conviction proceeding allows inquiry only into constitutional issues that were not, and could not have been, adjudicated on direct appeal. Towns, 182 Ill. 2d at 502. Thus, issues that were raised and decided on direct appeal are barred from consideration by the doctrine of res judicata; issues that could have been raised, but were not, are considered waived. Towns, 182 Ill. 2d at 502-03. In addition, two provisions of the Act may bar consideration of the claims raised in the present petition. First, section 122-1(c) establishes a limitations period (People v. Wright, 189 Ill. 2d 1, 10 (1999)), beyond which a post-conviction petition will not be heard unless the petitioner "alleges facts showing that the delay was not due to his or her culpable negligence." 725 ILCS 5/122-1(c) (West 1996). Second, at all times relevant to this case, the Act has also provided that "[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived." Ill. Rev. Stat. 1987, ch. 38, par. 122-3; 725 ILCS 5/122-3 (West 1996). Thus, although exceptions may be made in certain circumstances, the Act contemplates the filing of only one post-conviction petition. People v. Flores, 153 Ill. 2d 264, 273 (1992).

A trial court's dismissal of a post-conviction petition without an evidentiary hearing is reviewed de novo. People v. Coleman, 183 Ill. 2d 366, 389 (1998). Dismissal of a post-conviction petition following an evidentiary hearing is reviewed for manifest error. Coleman, 183 Ill. 2d at 385.

A. Second Post-Conviction Petition

The State argues that any consideration of petitioner's second post-conviction petition is barred by section 122-3 of the Act. Petitioner argues that he was deprived of his appeal of the dismissal of his initial petition due to the virtual abandonment of his case by counsel. Thus, he urges this court to find that his first post-conviction proceeding was deficient and that he is, therefore, entitled to consideration of his second petition. Neither party has addressed this question in terms of the cause-and-prejudice test that this court has frequently employed to determine whether making an exception to section 122-3 is warranted.

Review of our prior case law suggests a reason for the parties' oversight-we have been less than crystal clear about whether the cause-and-prejudice test must be applied to the claims raised in a successive post-conviction petition and how the test relates to claimed flaws in the initial post-conviction proceeding. See, e.g., Flores, 153 Ill. 2d at 278-79 (discussing the cause-and-prejudice test "parenthetically"); People v. Szabo, 186 Ill. 2d 19, 23 (1998), quoting Flores, 153 Ill. 2d at 273-74 (successive petition may go forward "only when" proceedings on the initial petition were " `deficient in some fundamental way,' " but not applying the cause-and-prejudice test); Wright, 189 Ill. 2d at 12 (same); People v. Jones, 191 Ill. 2d 194, 199 (2000) (stating that Flores "adopted" the cause and prejudice test "as the proper means of identifying the extremely narrow class of cases in which a defendant's successive post-conviction petition is entitled to consideration on the merits"); People v. Holman, 191 Ill. 2d 204, 210 (2000) (noting that this court "has previously referred to the cause and prejudice standard as an aid in determining whether a successive post-conviction proceeding may proceed"); People v. Orange, 195 Ill. 2d 437, 449 (2001) (holding that successive petitions may be allowed where proceedings on the initial petition were deficient and noting that the cause-and-prejudice test has been used "as an aid" to determine whether a successive post-conviction petition may proceed).

This case presents the opportunity to clarify two areas of confusion. First, is the cause-and-prejudice test merely an aid that courts may use to determine whether a claim raised in a successive petition should be allowed to proceed, or is it the analytical tool that has been adopted by this court for use in all such cases? Second, is a successive post-conviction petition permitted only when the first proceeding was fundamentally deficient, or is a flawed first proceeding but one of the circumstances that may justify consideration of a successive petition?

1. The Cause-and-Prejudice Test

In an initial post-conviction proceeding, the common law doctrines of res judicata and waiver operate to bar the raising of claims that were or could have been adjudicated on direct appeal. Towns, 182 Ill. 2d at 502-03. The doctrine of waiver, however, "is a rule of administrative convenience, not a jurisdictional or absolute bar to procedurally defaulted claims." People v. Hawkins, 181 Ill. 2d 41, 53 (1998). Exceptions to this common law principle of judicial administration are made in three situations: "where fundamental fairness so requires; where the alleged waiver stems from the incompetence of appellate counsel; or where facts relating to the claim do not appear on the face of the original appellate record." People v. Mahaffey, 194 Ill. 2d 154, 171 (2000). And although the "fundamental fairness" exception " `escapes precise definition' " (Mahaffey, 194 Ill. 2d at 173, quoting People v. Porter, 164 Ill. 2d 400, 408 (1995)), we have long defined the fundamental fairness exception in the context of an initial post-conviction petition in terms of the cause-and-prejudice test (see People v. Owens, 129 Ill. 2d 303, 317 (1989)).

In the context of a successive post-conviction petition, however, the procedural bar of waiver is not merely a principle of judicial administration; it is an express requirement of the statute. 725 ILCS 5/122-3 (West 1996). Only when fundamental fairness so requires will the strict ...

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