Appeal from the Circuit Court of Cook County Honorable Stuart E. Palmer, Judge Presiding.
The opinion of the court was delivered by: Justice O'mara Frossard
Following a jury trial, defendant Russell Morris was convicted of armed robbery, residential burglary, possession of a stolen motor vehicle and aggravated unlawful restraint. He was sentenced to a total of 25 years in prison. Defendant's convictions were affirmed on direct appeal. People v. Morris, 229 Ill. App. 3d 144 (1992). Defendant subsequently filed a supplemental petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)), which the trial court dismissed without granting an evidentiary hearing. Defendant appeals, contending the dismissal violated a directive from our previous opinion to conduct an evidentiary hearing and was improperly based on factual determinations. We reverse the dismissal of the petition at the second stage of the post-conviction process and remand for an evidentiary hearing.
The evidence established that two masked men broke into an apartment, where, armed with a gun, they bound and gagged two victims, stole money and various items including the victims' two automobiles. The facts of the case were related in our previous opinion, and we will discuss only the facts relevant to resolution of this appeal. Morris, 229 Ill. App. 3d at 149-54.
At a pretrial hearing, defendant litigated a motion to suppress his oral confession, arguing that his statement was coerced. Defendant presented three witnesses: his mother, Helen Morris; his girlfriend, Evelyn Rodriguez; and a friend, Robert Reyes. The trial court denied defendant's motion to suppress his oral confession.
On the day of jury selection, defense counsel requested a continuance because two key defense witnesses Evelyn Rodriguez and Robert Reyes were unavailable. Morris, 229 Ill. App. 3d at 162. Both Rodriguez and Reyes testified at the motion to suppress regarding defendant's physical condition during or after questioning by the police. Defense counsel requested the trial be reset because Rodriguez had moved and Reyes was out of town. The trial court denied the motion for a continuance. Despite the fact that both Rodriguez and Reyes had previously testified during the motion to suppress defendant's confession, the trial court, in denying the continuance, reasoned that defense counsel failed to answer the State's discovery request, and noted that the names of these defense witnesses had not been disclosed to the State. Morris, 229 Ill. App. 3d at 162.
Following the State's case at trial, defense counsel sought to present two alibi witnesses, Jamie Sweat and Eddy Veizaga. Defense counsel told the court he had just learned of both witnesses from defendant's mother, Helen Morris. Sweat was the former boyfriend of defendant's sister and employed as a warehouse foreman at Maloney, Cunningham and Derrick. Veizaga was a critical care practitioner at Lincoln West Memorial Hospital and a friend of defendant's mother. The trial court conducted a voir dire of each alibi witness outside the presence of the jury. The trial court refused to allow either Sweat or Veizaga to testify before the jury because defendant failed to disclose the alibi defense or to provide the State the names of the alibi witnesses during pretrial discovery. Morris, 229 Ill. App. 3d at 162-64.
The only evidence offered by the defense was the defendant's own testimony. Defendant testified that he spent the earlier part of the evening in question with Rodriguez, Reyes, and another friend. When Rodriguez left, at approximately 8:15 p.m., defendant went to Veizaga's home where he stayed until approximately 12:15 a.m. He returned to Reyes' house, where he found co-offender Ross leaving. Defendant admitted that he had given gifts to Rodriguez, which included items belonging to the victims, but claimed that Ross sold him those items.
On direct appeal, defendant raised, among other issues, numerous allegations of ineffective assistance of trial counsel. Those allegations included defendant's claims that his trial counsel failed to timely investigate, locate, disclose and secure as a witness Rodriguez, failed to disclose his mother Helen Morris as a witness, failed to disclose and secure Reyes as a witness and failed to timely investigate, locate and disclose Sweat and Veizaga, his alibi witnesses, before trial. Morris, 229 Ill. App. 3d at 165. Defendant claimed that the trial court improperly excluded those witnesses from testifying during trial.
We found on direct appeal that it was not error for the trial court to exclude the witnesses including the alibi witnesses (Morris, 229 Ill. App. 3d at 165). However, we did not address defendant's claim regarding his trial counsel's alleged ineffectiveness regarding these witnesses. We found that according to the record, defense counsel "did not discover until midtrial that Sweat, Veizaga, or defendant's mother could provide exculpatory testimony in defendant's behalf" (Morris, 229 Ill. App. 3d at 165), and that defendant's claims required consideration of matters outside the record (Morris, 229 Ill. App. 3d at 166). For the same reason, we did not address defendant's claim that his counsel's incompetence deprived him of the opportunity to call Rodriguez and Reyes. Morris, 229 Ill. App. 3d at 166. In declining to address these claims, we indicated that such matters would be "more properly addressed in a proceeding for post-conviction relief, where a complete record can be made regarding defendant's allegations in this regard." Morris, 229 Ill. App. 3d at 166.
Defendant filed a supplemental post-conviction petition alleging that he was denied effective assistance of trial counsel by counsel's failure to file an answer to discovery or disclose and secure the two alibi witnesses, Sweat and Veizaga, whom the trial court refused to allow to testify. Defendant also claimed his counsel was ineffective for failing to disclose and secure Rodriguez, resulting in the exclusion of her testimony also.
To support his petition, defendant attached three affidavits: his own; his trial counsel, John Purney's; and his mother's. There are no affidavits from the alibi witnesses or from Rodriguez. However, the record contains the trial court voir dire of each alibi witness conducted outside the presence of the jury in midtrial. In his affidavit, defendant stated that he informed Purney, "well before the start of trial," that Sweat and Veizaga could testify as alibi witnesses, and defendant indicated Purney's statement in court midtrial that he had just found out about the alibi witnesses was "untrue." Purney, consistent with defendant's affidavit, admitted in his affidavit that defendant informed him before trial "that there were several witnesses who he could call to testify regarding an alibi." Purney stated in his post-conviction affidavit that he did not file an answer to the State's discovery request, give the State "notice or any information regarding witnesses defendant would call at trial," and did not inform the State of an alibi defense. Helen Morris, defendant's mother, stated in her affidavit that shortly before the middle of the trial, she learned that Sweat and Veizaga were alibi witnesses, and that both Sweat and Veizaga were present in court during trial. Morris stated that she served Evelyn Rodriguez with a subpoena and that Rodriguez appeared in court later that same day, but was never called by defense counsel to testify.
The State's motion to dismiss the petition contended defendant's claims were unsupported allegations. The State contended that defendant's own affidavit was insufficient to establish Sweat's or Veizaga's alleged alibi testimony and that defendant did not name either man when he testified about his alibi at trial. The State attached as exhibits transcripts of the court's voir dire of Sweat and Veizaga and an excerpt of defendant's trial testimony. The State also contended that Sweat and Veizaga contradicted defendant's own testimony about his alibi. The State alleged that Rodriguez disappeared after testifying at defendant's motion to suppress his confession, and defendant could not show that he was prejudiced by her failure to testify at trial.
The State argued at the hearing on the motion to dismiss that the failure to call Sweat and Veizaga did not prejudice defendant. Defense counsel acknowledged some minor discrepancies in their testimony, but contended defendant was prejudiced by his trial counsel's failure to disclose or call the alibi witnesses. Defense counsel challenged the State's assertion that Rodriguez had disappeared after her pretrial testimony, noting the affidavit of Helen Morris indicating she served Rodriguez with a subpoena and Rodriguez appeared in court later that same day.
In ruling on the State's motion to dismiss defendant's post-conviction petition, the court recognized that Rodriguez was known to the State and defense from her pretrial testimony at the hearing to suppress defendant's confession and concluded, for that reason, that Rodriguez would not have been excluded from testifying at trial. The court, noting that Rodriguez testified at the motion to suppress, concluded that "her not being called as a witness at the trial may well have been a strategy decision based on the lack of success of her testimony heard previously." The court found that nothing in the record established that defendant's trial counsel was precluded from calling Rodriguez. The court further found that defendant failed to establish prejudice from counsel's failure to disclose the two alleged alibi witnesses and granted the State's motion to dismiss.
The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)) provides that a defendant may challenge his conviction by alleging "that in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both." 725 ILCS 5/122-1 (West 1998); People v. Tenner, 175 Ill. 2d 372, 377 (1997). A petition filed under the Act must "clearly set forth the respects in which petitioner's constitutional rights were violated." 725 ILCS 5/122-2 (West 1998). The petition shall have attached "affidavits, records, or other evidence" as required by section 122-2 of the Act "supporting its allegations or shall state why the same are not attached." 725 ILCS 5/122-2 (West 1998); People v. Collins, No. 90679, (March 15, 2002). Post-conviction relief is a collateral proceeding, not an appeal from the underlying judgment. People v. Evans, 186 Ill. 2d 83, 89 (1999). All issues decided on direct appeal are res judicata, and all issues that could have been raised in the original proceeding but were not are waived. People v. Whitehead, 169 Ill. 2d 355, 371 (1996). If a claim of ineffective assistance of counsel is based on matters outside the record, then it could not have been raised on appeal and, consequently, is not waived in a post-conviction petition. People v. Owens, 129 Ill. 2d 303 (1989).
In cases not involving the death penalty, the Act establishes a three-stage process for adjudicating a petition for post-conviction relief. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). At the first stage of a post-conviction proceeding, the circuit court determines whether the petition alleges a constitutional infirmity that, if proven, would necessitate relief under the Act. People v. Coleman, 183 Ill. 2d 366, 380 (1998). The first stage presents a pleading question. Unless positively rebutted by the record, all well-pleaded facts are taken as true at this stage, and the trial court's determination is subject to de novo review. Coleman, 183 Ill. 2d at 385, 388-89.
If the petition is not dismissed and survives the first stage of the post-conviction process then subsection (b) of section 122-2.1 of the Act provides that "*** the court shall order the petition to be docketed for further consideration in accordance with Sections 122-4 through 122-6." 725 ILCS 5/122-2.1(b) (West 1998). The petition in this case survived the first stage, therefore, the circuit court was required to docket the pleading and appoint counsel if necessary, both of which were done in this case. 725 ILCS 5/122-2.1 (West 1998). At the second stage of the post-conviction process, the State is required to either answer the pleading or move to dismiss. 725 ILCS 5/122-5 (West 1998). If at the second stage the State files a motion to dismiss, the trial court must rule on the legal sufficiency of the defendant's allegations, taking all well-pleaded facts as true. People v. Ward, 187 Ill. 2d 249, 255 (1999). The State in this case, rather than answer the petition, moved for dismissal, which was granted by the circuit court.
We are mindful that we review this case at the second stage of the post-conviction process. Based on the procedural posture of this case, the relevant question is whether the allegations of the petition, supported by the record and accompanying documents demonstrate a substantial showing of a constitutional violation. Edwards, 197 Ill. 2d at 245-46. If at the second stage a substantial showing of a constitutional violation is established, the petition is advanced to the third stage for an evidentiary hearing. 725 ILCS 5/122-6 (West 1998); Gaultney, 174 Ill. 2d at 418. On appeal defendant ...