Appeal from the Circuit Court of Cook County Honorable Ralph Reyna, Judge Presiding.
The opinion of the court was delivered by: Justice O'mara Frossard
Following a jury trial, defendant Timothy Diehl was convicted of burglary and sentenced as a Class X offender to an eight-year prison term. The judgment was affirmed on direct appeal. People v. Diehl, No. 1-99-1528 (2000) (unpublished order pursuant to Supreme Court Rule 23). Defendant thereafter filed a pro se petition to vacate the judgment of conviction and a pro se petition for post-conviction relief. In separate orders, the circuit court denied the petition to vacate the judgment and summarily dismissed the post-conviction petition as frivolous and patently without merit. In this consolidated appeal, defendant contends that his pro se post-conviction petition presented the gist of two constitutional claims of ineffective assistance of appellate counsel. Defendant also contends that Public Act 83-942, effective November 23, 1983, violates the single subject clause of the Illinois Constitution (Ill. Const. 1970, art. IV, § 8(d)).
Defendant's conviction arose from an incident involving the theft of a car battery from a parked vehicle. At trial, Chicago police officer Timothy Adams testified that around 1 a.m. on August 17, 1998, he and his partner were on routine patrol when they came across defendant walking down the street carrying a car battery. The officers stopped defendant to ask him questions. In response to their inquiries, defendant related that he got the battery from his friend "Chris," pointed in the general direction of where Chris lived, and said he was taking the battery to a car to check its alternator. According to Officer Adams, defendant then offered to take the officers to Chris's home so that Chris could confirm defendant's story. Defendant got into the police car and directed the officers to the 4100 block of Nelson Street. There, Officer Adams noticed a parked car with its hood up, so he asked defendant whether he had gotten the battery from that car. When defendant said that he had, Officer Adams decided to inspect the parked car. He found that the battery case had been pried open and bent, a bolt was "chewed up," and the battery was missing. A pair of pliers was lying in the grass about two feet away.
In response to Officer Adams' questions, defendant indicated that he had used the pliers to open the battery case. Officer Adams testified that his partner ran the license plate and learned the car belonged to Zachary Schrantz, who lived nearby. Officer Adams rang Schrantz's bell, and when Schrantz answered the door, asked if anyone named Chris lived at the address. Schrantz told Officer Adams that no one named Chris lived there, stated he had not allowed anyone to remove the battery from his car, and denied knowing defendant.
Officer Adams got back into the squad car and told defendant, "Your story doesn't look good." Defendant then confessed that after Chris opened the car door for him, he popped the hood latch, opened the hood, and took the battery. Later, after receiving Miranda warnings at the police station, defendant made a similar statement in which he related he had intended to sell the battery to a friend. On cross-examination, Officer Adams acknowledged that even though defendant had pointed to a house down the block from where he was walking with the battery, identifying it as Chris's home, the officers did not make any further attempt to locate Chris.
Zachary Schrantz testified that on August 17, 1998, around 2 a.m. a police officer rang his doorbell. When Schrantz answered the door, the officer pointed out his car and asked if it was his. Schrantz inspected the car, noticing that the hood was up, the battery was gone, and the battery casing was bent. At the officer's request, Schrantz looked at defendant, who was in the police car, and at the battery, which was in the trunk of the police car. Schrantz identified the car and battery as his, but stated that he did not know defendant. Schrantz further testified that he never gave defendant permission or authority to enter his car or remove its battery.
Defendant testified that on the evening of August 16, 1998, he was drinking at a bar with a friend named Dave and a man defendant knew as Chris Morris. Defendant had met Chris, who was a friend of a friend, on two prior occasions. Around 12:30 a.m., defendant was approached by Michelle King, a friend of his ex-girlfriend. King told defendant she was having trouble with her car and asked for a jump. When defendant told King he did not have a car, Chris said his brother had a car and offered to go ask his brother if he would give King a jump. Chris left the bar and eventually returned. Defendant then left the bar with Chris and went to Chris's apartment building, which was a block from the bar. Chris went inside the building, came back out with a car battery, and gave the battery to defendant.
Defendant stated that around 1 a.m., he was walking back toward the bar, carrying the battery, when a police car pulled up next to him. An officer asked where he was going and what he was doing with a car battery. Defendant told the officer that he got the battery "from a man named Chris" and pointed to Chris's building, which was about 50 feet away. He also told the officer about King asking him for a jump and explained to the officer that he was going to use the battery to try to start King's car. In response to further questioning from the officer, defendant related that Chris had said the battery was from his brother's car. The officer put the battery in the trunk of the police car and led defendant to the backseat. The officer and his partner then drove defendant around for a few blocks, finally stopping on Nelson Street near a car with its hood up.
Defendant testified that he had not been in Schrantz's car and had not removed its battery. Defendant denied having confessed to either act and stated that the police never showed him a pair of pliers. He further testified that since the night of his arrest, he learned that Chris had been arrested for another burglary charge and was "somewhere" in the Cook County jail. Finally, defendant stated he had sent a friend to King's last known address, but the friend had been unable to locate her.
In rebuttal, the State introduced into evidence two certified copies of criminal convictions. The first reflected that defendant had been convicted of a misdemeanor on February 26, 1998. The second reflected a misdemeanor conviction on November 7, 1997.
Following deliberations, the jury returned a verdict finding defendant guilty of burglary. The trial court subsequently sentenced defendant to eight years in prison as a Class X offender. On May 12, 1999, defendant filed a notice of appeal.
On October 27, 1999, defendant filed a pro se petition to vacate the judgment of conviction pursuant to section 2-1401 of the Code of Civil Procedure. 735 ILCS 5/2-1401 (West 1998). The petition included an assertion of the existence of newly discovered evidence. Defendant stated that on the date of his arrest, he "assumed Mr. Christopher Damnitz to be named Chris Morris." Since then, defendant had learned from Damnitz that "Morris" was only a childhood nickname. Defendant argued:
"The efforts made by the Public Defender's office in locating him were based on the mistaken assumption that his actual name was `Chris Morris.' This man Chris Damnitz could have testified at my hearing, and I informed the court of this and that I wanted a subpoena sent not only to him but to another witness as well as recalling Off. Adams for the purpose of me confronting him with his inconsistent testimony. When I requested these 3 subpoenas, I was told by the Court that I would have to get my witnesses on my own."
The pro se section 2-1401 petition also presented an argument regarding Michelle King, the witness referenced in the above-quoted paragraph. Defendant stated that although he gave the public defender's office King's address and told them her roommate's last name may be on the door, their investigator could not locate her. Defendant argued, "It is clear that even if there was an effort made to locate this witness, it was not very diligent." He then summarized, "The bottom line is this: I gave the location of both of these witnesses' residences to the ineffective Public Defenders, and requested that subpoenas be sent to them. The Public Defender told me that they would not subpoena anyone until they had a chance to speak to them first." Finally, defendant related the substance of Damnitz's and King's potential testimony as follows:
"4) The testimony of Christopher Damnitz is evidence that Mr. Timothy Diehl did not commit Burglary on the night of August 16 or 17, 1998 to a vehicle owned by Mr. Zachary Schrantz of 4117 W. Nelson Street. Mr. Damnitz can corroborate Mr. Diehl's explanation of having received the battery from Mr. Damnitz that was purported to be the proceeds of a Burglary to the automobile of Mr. Schrantz.
5) The testimony of Michelle King can corroborate the defendant's explanation of having received the battery from Mr. Damnitz, and that Mr. Diehl remained in the bar with her while Mr. Damnitz left and then returned stating that he had located a battery for her." The circuit court denied defendant's pro se petition to vacate judgment of conviction on November 8, 1999.
On August 14, 2000, this court affirmed defendant's conviction and sentence. See People v. Diehl, No. 1-99-1528 (2000) (unpublished order pursuant to Supreme Court Rule 23). In so doing, this court rejected defendant's contention that the trial court had erred in denying his motion to excuse a ...