The opinion of the court was delivered by: Justice Garman
Docket No. 89910-Agenda 3-March 2002.
Petitioner, Lenard Johnson, pleaded guilty in 1990 to the murder of 11-year-old Donald Buske, the aggravated criminal sexual assaults of two female minors who were visitors at Donald's home, and home invasion. He waived a jury trial for sentencing. The circuit court of Montgomery County found three aggravating factors, concluded that there were no mitigating factors, and sentenced petitioner to death. Petitioner filed a late motion to withdraw his guilty plea, which the trial court heard upon the order of this court and denied. On direct appeal, this court affirmed the murder and sexual assault convictions and corresponding sentences, but vacated the conviction and sentence for home invasion. See People v. Johnson, 154 Ill. 2d 356 (1993). Petitioner's petition for a writ of certiorari to the United States Supreme Court was denied. Johnson v. Illinois, 512 U.S. 1227, 129 L. Ed. 2d 848, 114 S. Ct. 2725 (1994).
Petitioner subsequently filed a petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1994)). The circuit court dismissed several of his claims and denied others. Because petitioner was sentenced to death for the underlying convictions, his appeal lies directly to this court. 134 Ill. 2d R. 651(a). He raises five issues in this appeal: (1) whether he must be granted a new trial because, at the time he pleaded guilty, facts existed that would have raised a bona fide doubt as to his competence; (2) whether he received effective assistance of trial counsel because he had only one attorney and no mitigation specialist, (3) whether his court-appointed attorney was operating under a conflict of interest, (4) whether his death sentence is disproportionate to sentences imposed on similarly situated defendants, and (5) whether the death penalty statute is unconstitutional. 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. Johnson, 154 Ill. 2d 356. Thus, we will refer to those facts only as necessary in the discussion of the issues raised in petitioner's post-conviction petition. Because of the unusual procedural history of this case, however, a rather detailed summary of the post-conviction proceedings is necessary.
In 1995, petitioner filed a petition for post-conviction relief containing 15 separate claims plus a "catch-all" claim, purporting to incorporate by reference all claims made in his pretrial and post-trial motions and his direct appeal. The State filed a motion to dismiss pursuant to section 122-5 of the Act (725 ILCS 5/122-5 (West 1994)), arguing that all of the issues raised by petitioner either were or could have been raised on direct appeal and were, therefore, barred by waiver or res judicata. In addition, the State argued that petitioner had not presented any new evidence that would justify an evidentiary hearing.
After a hearing on January 26, 1996, the circuit court granted the State's motion, in part, dismissing all but five of petitioner's original 16 claims and directing the State to file an answer to the remaining claims, enumerated I, II, III, X, and XV. The State apparently filed its answer on March 1, 1996. The table of contents provided with the record indicates that the State's answer is to be found at page 812 of the common law record. Pages 812 and 813 are missing, so we are unable to determine how the State answered the five claims that survived the motion to dismiss.
On May 23, 1997, petitioner filed a supplement to his petition, adding two additional claims, numbered XVII and XVIII. At all times relevant to this matter, the Act has specifically prohibited the filing of further pleadings after the circuit court has ruled on a motion to dismiss. 725 ILCS 5/122-5 (West 1994, 1996, 1998) (after denial of motion to dismiss and filing of an answer by the State,"[n]o other or further pleadings shall be filed except as the court may order on its own motion or on that of either party"). The record does not contain a motion by petitioner seeking leave to supplement his petition with two additional claims after the circuit court ruled on the State's first motion to dismiss. However, the State did not challenge petitioner's filing of additional pleadings. Instead, the State filed a second motion to dismiss, which was denied after a hearing on March 17, 1998. The State then filed an answer, denying the allegations contained in both of the new claims. Thereafter, the State apparently sought leave to file a motion for summary judgment. The record contains an April 9, 1998, docket entry with the notation "Confer[ence] call w/o record. SA to file Motion for Summ. Jmt. by 5/4/98 at 4 p.m."
On May 4, 1998, the State filed a "Motion for Summary Judgment" in which it argued that the two claims raised in the supplemental petition could be resolved by the circuit court based entirely on its examination of the record and that, therefore, an evidentiary hearing would not be necessary. The motion, however, neither cited section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005(c) (West 1998)), nor requested that judgment be entered for the State as a matter of law.
On June 19, 2000, the circuit court heard arguments on the State's motion for summary judgment and denied it, thereby indicating its determination that two newly added claims could not be resolved purely as a matter of law. Immediately thereafter, the circuit court heard arguments on the merits of all seven of the pending claims, the five that survived the State's original motion to dismiss and the two claims raised in the supplemental petition. Petitioner describes this as a "stipulated hearing," because no testimony was presented.
The circuit court based its ruling on the record as it stood on June 19, 2000, including the transcripts of the original proceedings, the deposition of trial counsel, David Grigsby, which had been taken on November 4, 1998, the 1995 report of mitigation specialist Jeffrey Eno, and the reports of four mental health professionals who examined petitioner at various times. Psychiatrist M. Scott Hamilton examined him in 1990, prior to his pleading guilty. Psychiatrist Philipp E. Bornstein apparently examined petitioner prior to the entry of his plea, but did not provide a written report until several days thereafter. Clinical psychologist Mark Ramsden evaluated him after his conviction and sentencing, but prior to a hearing on his late motion to withdraw his guilty plea. In addition, clinical psychologist Michael M. Gelbort evaluated petitioner on April 8, 1999. Both the Grigsby affidavit and the Gelbort evaluation were made part of the record after the circuit court denied the State's motions to dismiss. At the conclusion of the hearing, the circuit court denied the seven remaining counts of the petition.
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). A petition for post-conviction relief is not an appeal of the underlying judgment; rather, it is a collateral proceeding. Towns, 182 Ill. 2d at 502. As such, 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.
Post-conviction proceedings in capital cases are governed by section 122.2-1(b) of the Act (725 ILCS 5/122.2-1(b) (West 1994)), which requires the circuit court to determine initially "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 1994); Thomas, 195 Ill. 2d at 40. If the State moves to dismiss the petition, the circuit court must examine and rule on the legal sufficiency of each of defendant's claims, taking all well-pleaded facts as true. People v. Ward, 187 Ill. 2d 249, 255 (1999). If the allegations of the post-conviction petition, supported by the trial record and any accompanying affidavits, do not make a substantial showing of a constitutional violation, the petition may be dismissed. People v. Orange, 195 Ill. 2d 437, 448 (2001). If the petition does make a substantial showing of a constitutional violation, the matter proceeds to a hearing on the merits of petitioner's claims. People v. Hobley, 182 Ill. 2d 404, 428 (1998).
Our detailed recitation of the various stages of this matter before the circuit court is necessary to our determination of the standard of review. Both parties suggest de novo review, citing People v. Coleman, 183 Ill. 2d 366, 378-89 (1998), in which this court determined that plenary review is appropriate when the circuit court has granted the State's motion to dismiss based on its determination that the allegations in a post-conviction petition are insufficient to demonstrate a constitutional deprivation that entitles the petitioner to relief under the Act. The lengthy explanation of the standard of review in Coleman has since been reduced to a simple formula: de novo review for the dismissal of post-conviction petition without an evidentiary hearing and review for manifest error when petitioner's constitutional claims were denied following an evidentiary hearing. See, e.g., People v. Pitsonbarger, No. 89368, slip op. at 8 (May 23, 2002); People v. Topps, 309 Ill. App. 3d 813, 819 (1999).
In the present case, the parties agree that there was no "evidentiary hearing." Petitioner describes the hearing that took place after the State's motion for summary judgment was denied as a "stipulated hearing." The Act, however, does not mention a "stipulated hearing." Indeed, the words "evidentiary hearing" do not appear in the Act. Rather, the Act provides that if the petition is not dismissed pursuant to section 122-2.1, "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 1994). Section 122-6 governs such "further consideration." Under this provision, the circuit court "may receive proof by affidavits, depositions, oral testimony, or other evidence." 725 ILCS 5/122-6 (West 1994).
Black's Law Dictionary defines "hearing" as a "judicial session usu[ally] open to the public, held for the purpose of deciding issues of fact or of law, sometimes with witnesses testifying." Black's Law Dictionary 725 (7th ed. 1999). The more specific term "evidentiary hearing" is a "hearing at which evidence is presented, as opposed to a hearing at which only legal argument is presented." Black's Law Dictionary 725 (7th ed. 1999). It is the section 122-6 hearing that has come to be called an "evidentiary hearing."
The circuit court declined to dispose of seven of petitioner's claims as a matter of law by initially denying the State's motion to dismiss 5 of the 16 original claims and then subsequently rejecting the State's motion to dismiss and its motion for summary judgment as to the two additional claims. At the June 19, 2000, hearing, the circuit court, having previously found that each of these seven claims did make a substantial showing of a violation of a constitutional right, allowed the parties to address each claim on the merits. Thus, this proceeding was a section 122-6 hearing even though no live testimony was presented.
The question that we must resolve is whether de novo review is appropriate where no new evidence was presented at the section 122-6 hearing that would require the circuit court to assess the credibility of witnesses. We recently addressed a similar question in People v. Caballero, No. 88784, slip op. at 17-18 (October 18, 2002), where the circuit court, at the section 122-6 hearing, heard argument based on the record, but did not hear testimony. We concluded:
"The de novo standard of review is applicable when the issue presented is purely a question of law. People v. Chapman, 194 Ill. 2d 186, 217 (2000) (stating that de novo review is appropriate when there are no factual or credibility disputes and the appeal, therefore, `involves a pure question of law'); see also People v. Hall, 195 Ill. 2d 1, 21 (2000) (stating that de novo review is applicable to questions of statutory interpretation or other questions of law). In Hall, the defendant urged de novo review because the rulings at issue `involved no fact-finding based on the demeanor or credibility of the witnesses because the evidence was written.' Hall, 195 Ill. 2d at 21. We rejected this argument because the issue presented, whether certain evidence should have been admitted at trial, was not a pure question of law. Some deference was due to the trial court's rulings because `the trial court exercised discretion ***, i.e., the court based these rulings on the specific circumstances of this case and not on a broadly applicable rule.' Hall, 195 Ill. 2d at 21."
Although the circuit court in Caballero heard no new evidence and credibility of witnesses was not a concern, the circuit court did have to weigh the facts and make inferences therefrom in order to rule on "the specific circumstances" of the case. Nevertheless, we applied a de novo standard of review because, given the fact that more than a decade had passed between the trial and the post-conviction proceeding, the circuit court had no special expertise or familiarity with the case that would have made it more capable than this court of weighing the facts presented by the written record and drawing necessary inferences.
In Coleman, we observed that the "proper standard of review cannot be articulated without first examining the substantive and procedural backdrop against which the appealed order or ruling arose." Coleman, 183 Ill. 2d at 378. Thus, in determining the standard of review, we consider not only the procedural posture (whether the circuit court was ruling on a motion to dismiss or after a section 122-6 hearing), but the nature of the question (whether it is a pure question of law or a question of fact), and the degree to which the court must assess credibility, weigh facts, and draw inferences.
In the present case, we will review de novo those claims dismissed by the circuit court in response to the State's first motion to dismiss. Coleman, 183 Ill. 2d at 388-89. These are his conflict of interest argument (claim XI in petitioner's original petition and point III in his current brief) and his various arguments about the constitutionality of the death penalty statute (claims IV, V, VI, VII, VIII, IX, and XIII in his original petition and point V in his current brief).
Petitioner's point IV, regarding similarly situated defendants, is an amalgam of his original claims X and XIV, one of which was dismissed and one of which was denied after the section 122-6 hearing. Because this issue is one that can be resolved as a matter of law, without the need to consider the specific circumstances of this case, we review it de novo. Hall, 195 Ill. 2d at 21.
As to the claims denied following the section 122-6 hearing, we will give some deference to the circuit court in acknowledgment of its familiarity with petitioner's case and particularly with the professional performance of trial counsel. We, therefore, review petitioner's arguments regarding his fitness to plead guilty (point I) and the performance of trial counsel (point II) for manifest error. Manifest error is that which is "clearly evident, plain, and indisputable." People v. Ruiz, 177 Ill. 2d 368, 384-85 (1997).
I. Fitness to Plead Guilty
Although not set out as separate arguments within petitioner's brief, his fitness claim offers two distinct rationales. First, petitioner makes statements suggesting that the trial court actually had a bona fide doubt as to his fitness and, thus, should have conducted a hearing to determine his capacity to enter a knowing and voluntary plea. Second, even if the trial court's comments do not reflect an actual doubt as to his fitness, he argues that he has produced new evidence that would have raised a bona fide doubt if it had been available to the trial court. He further argues that trial counsel was ineffective for failing to request a fitness hearing and appellate counsel was ineffective for failing to raise this issue on ...