Appeal from the Circuit Court of Cook County. No. 88 CR 3831 Honorable Joseph G. Kazmierski, Jr., Judge Presiding.
Defendant Kenneth Broughton appeals from a Cook County circuit court order dismissing his post-conviction petition without an evidentiary hearing. Defendant contends that an accomplice's affidavit constitutes newly discovered evidence of defendant's innocence; trial counsel failed to present the testimony of an available witness; and post-conviction counsel failed to comply with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). We affirm the judgment of the circuit court.
Defendant and seven other men were charged with the August 1987 fatal beating of truck driver Julio Palomo at an intersection on the south side of Chicago. According to evidence presented at trial, defendant, his nephew Willie Broughton, and accomplice Lavatis Wilson were part of a group of men who positioned themselves on various street corners at an intersection and burglarized the trailers of trucks that stopped there. Wilson testified for the State that the victim exited his truck to prevent two accomplices from breaking into a co-worker's trailer, but the two accomplices chased and cornered the victim. According to Wilson, defendant crossed the street and knocked the victim to the ground and then went to the co-worker's trailer. Wilson testified that while several accomplices fatally beat the victim, defendant and another accomplice removed cargo from the trailer. The offenders then scattered when the police arrived. The co-worker and another eyewitness identified defendant as one of the offenders.
Following the joint jury trial with co-defendant Gregory Johnson, defendant was convicted of murder and burglary. Defendant waived his right to be sentenced by a jury, and the trial court sentenced him to natural life imprisonment for the murder offense only. On direct appeal, defendant asserted that he was improperly convicted under the burglary statute and that his sentence was excessive. This court affirmed the trial court's judgment. People v. Johnson, Nos. 1-88-3422, 1-89-0750 cons. (1991) (unpublished order under Supreme Court Rule 23). Defendant petitioned for leave to appeal our decision, but was denied by the Illinois Supreme Court on February 5, 1992. People v. Johnson, 144 Ill. 2d 639 (1992).
In September 1992, defendant timely filed a pro se post-conviction petition, alleging ineffective assistance of (1) trial counsel for not allowing defendant to testify and (2) appellate counsel for not raising that issue on appeal. Defendant also included a motion to extend the time to file his petition, alleging that his petition was untimely but that his inability to file was due to the imposition of a prison lockdown.
Counsel was appointed to represent defendant and, in 1996, supplemented the petition to allege ineffective assistance of trial counsel for failure to adequately investigate, interview and present the testimony of known witnesses Linda and Ernest Dent to impeach the State's witnesses. No affidavits supported the petition, and the State subsequently filed a motion to dismiss.
In 2000, defendant's counsel filed an addendum to the petition to attach Willie Broughton's and Linda Dent's affidavits. In his affidavit, Willie Broughton stated that prior to the offense, State witness Lavatis Wilson and an accomplice shot defendant and almost killed him. Moreover, Willie Broughton stated that he was present when the victim was beaten and defendant never hit, kicked, stomped or slammed the victim to the ground. Further, Willie Broughton asserted that he told the police and his attorney that defendant was not involved in the victim's beating.
In her affidavit, Linda Dent stated that on the date of the offense, she and her brother Ernest Dent were at the scene talking to defendant, their cousin, in a restaurant parking lot. While they were talking, two men tried to enter the back of a truck that was in motion, and defendant yelled to one of those men to get off the truck. Ernest and Linda Dent left the scene, and defendant remained and talked to a man sitting outside the restaurant.
Further, in the addendum to defendant's petition, counsel asked for leave to file Ernest Dent's affidavit, explaining that she had interviewed him but had difficulty securing his affidavit because he resided in Arkansas and did not have a telephone. Counsel also attached defendant's brief on direct appeal to support his claim of ineffective counsel. In addition, counsel added the claim that, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), defendant's sentence of natural life imprisonment violated his due process rights and jury trial guarantees.
On the State's motion, the trial court dismissed defendant's petition without commenting on its timeliness or merits. Defendant appeals the dismissal, contending that his petition made a substantial showing that Willie Broughton's testimony constituted newly discovered evidence of defendant's innocence and that trial counsel was ineffective for failure to present Linda Dent's testimony. Defendant also contends that post-conviction counsel did not file a certificate in compliance with Supreme Court Rule 651(c) and that the record fails to affirmatively show that she complied with the requirements of that rule.
Dismissal of a post-conviction petition is appropriate only when the petition's allegations of fact, liberally construed in favor of the petitioner and in light of the original trial record, fail to make a substantial showing of a violation of a constitutional right. People v. Coleman, 183 Ill. 2d 366, 381-82 (1998). An action for post-conviction relief is a collateral proceeding, not an appeal from the earlier judgment. People v. McNeal, 194 Ill. 2d 135, 140 (2000). Considerations of res judicata and waiver limit the scope of post-conviction relief "to ...