Appeal from the Circuit Court of Cook County Honorable Edward M. Fiala, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice O'mara Frossard
Defendant, Johnnie Plummer was convicted of first-degree murder and attempted armed robbery. His convictions were affirmed on direct appeal in People v. Plummer, 318 Ill. App. 3d 268 (2000). The facts are fully discussed in the previous opinion and will only be repeated as is necessary for resolution of the relevant issues. Defendant filed a pro se petition for post-conviction relief. The allegations of defendant's petition are set forth as necessary in the following opinion. The trial court at the first stage of the post-conviction process dismissed defendant's petition as frivolous and patently without merit. Defendant appeals.
POST-CONVICTION HEARING ACT
The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)) provides a mechanism by which criminal defendants can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution and the Illinois Constitution. People v. Mahaffey, 194 Ill. 2d 154, 170 (2001). A post-conviction petition is a collateral attack on a prior conviction. Mahaffey, 194 Ill. 2d at 170.
In a non-capital case, the Act creates a three-stage procedure for post-conviction relief. People v. Boclair, 202 Ill. 2d 89, 99 (2002). At stage one, the trial court, without input from the State, examines the petition to determine whether it is frivolous or patently without merit. 725 ILCS 5/122-2.1 (West 2000). If the petition is not dismissed at stage one, it proceeds to stage two, where section 122-4 of the Act provides for the appointment of counsel for an indigent defendant. 725 ILCS 5/122-4 (West 2000). At stage two the State has the opportunity to either answer or move to dismiss the petition (725 ILCS 5/122-5 (West 2000)), and the trial court determines whether the petition makes a substantial showing of a constitutional violation (People v. Coleman, 183 Ill. 2d 366, 381 (1998)). If the petition is not dismissed at stage two, it proceeds to stage three, where the trial court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2000). An evidentiary hearing on the petition is required when the allegations of the petition, supported by the trial record and the accompanying affidavits, demonstrate a substantial violation of a constitutional right. People v. Mitchell, 189 Ill 2d 312, 322 (2000).
The instant case presents a pro se petition dismissed at the first stage of the post-conviction process. At the first stage, the trial court must determine whether the petition is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2000). "A post-conviction petition is considered frivolous or patently without merit only if the allegations in the petition, taken as true and liberally construed, fail to present the `gist of a constitutional claim.' " People v. Edwards, 197 Ill. 2d 239, 244 (2001), quoting People v. Gaultney, 174 Ill. 2d 410, 418 (1996).
In the instant case, defendant's allegations involve claims of ineffective assistance of trial and appellate counsel. Such claims are resolved by application of the Strickland standard. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Claims of ineffective assistance of appellate counsel are measured against the same standard as claims of ineffective assistance of trial counsel. People v. Caballero, 126 Ill. 2d 248, 269-70 (1989). A defendant must demonstrate both a deficiency in counsel's performance and prejudice resulting from the deficiency. People v. Edwards, 195 Ill. 2d 142, 162 (2001), citing Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. To demonstrate performance deficiency, a defendant must establish that counsel's performance was below an objective standard of reasonableness. Edwards, 195 Ill. 2d at 163. Prejudice is demonstrated if there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. A defendant who claims that appellate counsel was ineffective for failing to raise an issue on appeal must allege facts demonstrating such failure was objectively unreasonable and that counsel's decision prejudiced defendant. People v. Enis, 194 Ill. 2d 361, 377 (2000). If the underlying issue is meritorious, the defendant has suffered prejudice. Enis, 194 Ill. 2d at 377.
The petition alleges ineffective assistance of trial and appellate counsel with regard to the following issues: (1) failure to request a continuance in order to obtain Erica Frazier's mental health records; (2) failure to subpoena at trial Aaron Johnson, who allegedly heard an officer claim to have "put another murder on" defendant; and (3) failure to challenge various prosecutorial arguments that allegedly deprived defendant of a fair trial. At this stage, summary dismissal is reviewed de novo. Coleman, 183 Ill. 2d at 388-89.
Our review of the record reflects that under the terms of the Act, first-stage dismissal in the instant case could not properly be based upon res judicata (725 ILCS 5/122-2.1(a)(2), (c) (West 2000)), waiver, or procedural default (725 ILCS 5/122-5, 122-6 (West 2000)). In the instant case, the issues alleging ineffective assistance of trial and appellate counsel were not in fact previously decided. Therefore, under the terms of the Act, the record substantively rebuts res judicata as the basis for first-stage dismissal. 725 ILCS 5/122-2.1(a)(2), (c) (West 2000). We further note the Illinois Supreme Court has repeatedly recognized that waiver or procedural default may not preclude an ineffective assistance claim for what trial or appellate counsel allegedly ought to have done in representing a criminal defendant. See People v. Erickson, 161 Ill. 2d 82, 88 (1994) (and cases cited therein).
Claims of ineffective assistance of counsel frequently implicate matters outside the record or require resolution of disputed facts. "[W]hen a petitioner's claims are based upon matters outside the record, this court has emphasized that `it is not the intent of the [A]ct that [such] claims be adjudicated on the pleadings.' " Coleman, 183 Ill. 2d at 382, quoting People v. Airmers, 34 Ill. 2d 222, 226 (1966). In the context of the ineffective assistance of trial and appellate counsel alleged by defendant, neither waiver nor procedural default can provide the basis for first-stage dismissal. Coleman, 183 Ill. 2d at 382; 725 ILCS 5/122-5, 122-6 (West 2000). The Illinois Supreme Court in Coleman recognized that factual disputes raised by the pleadings cannot be resolved by a motion to dismiss at either the first stage under section 122-2.1 or at the second stage under section 122-5 but, rather, can only be resolved by an evidentiary hearing:
"Thus, at the dismissal stage of a post-conviction proceeding, whether under section 122-2.1 or under section 122-5, the circuit court is concerned merely with determining whether the petition's allegations sufficiently demonstrate a constitutional infirmity which would necessitate relief under the Act. Moreover, our past holdings have foreclosed the circuit court from engaging in any fact-finding at a dismissal hearing because all well-pleaded facts are to be taken as true at this point in the proceeding." Coleman, 183 Ill. 2d at 380-81, citing People v. Caballero, 126 Ill. 2d 248, 259 (1989), and People v. Wegner, 40 Ill. 2d 28, 31-32 (1968) (recognizing that factual disputes raised by the pleadings require a determination of the truth or falsity of the supporting affidavits or exhibits, a determination which cannot be properly made at a hearing on a motion to dismiss, but rather can only be resolved through an evidentiary hearing).
Based on the first-stage procedural posture of the instant case, the relevant question is first, whether the pro se petition alleges the gist of a constitutional deprivation, and second, whether the petition was substantively rebutted by the record, rendering it frivolous or patently without merit. Edwards, 197 Ill. 2d at 245; Coleman, 183 Ill. 2d at 382.
PETITION ALLEGES CONSTITUTIONAL DEPRIVATION UNREBUTTED BY RECORD RENDERING THE PETITION NEITHER ...