Appeal from the Circuit Court of Cook County Honorable Stuart E. Palmer, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice O'mara Frossard
Following a bench trial in case number 96 CR 12932, defendant Van Paleologos was convicted of aggravated criminal sexual assault, home invasion, armed robbery, and armed violence. He was sentenced to 25 years in prison for aggravated criminal sexual assault and a consecutive 25-year term of imprisonment for the other three convictions. Defendant subsequently pleaded guilty to home invasion and attempted aggravated criminal sexual assault in case number 96 CR 12931 and was sentenced to concurrent terms of 25 and 15 years in prison, respectively, to be served concurrently with the sentence imposed in case number 96 CR 12932. On appeal we affirmed in an order pursuant to Supreme Court Rule 23. People v. Paleologos, No. 1-98-1832, 1-99-1143 cons. (June 11, 2001) (unpublished order pursuant to Supreme Court Rule 23).
Defendant by retained counsel filed a petition for post-conviction relief. Judge Palmer denied defendant's request that he recuse himself, and Judge McSweeney-Moore denied his motion for substitution of judge for cause on the petition. Judge Palmer dismissed the petition for being untimely. The facts of the case will only be discussed as relevant to the issues on appeal.
In his post-conviction petition, defendant alleged ineffective assistance of trial and appellate counsel regarding the following issues: (1) he was denied effective assistance of trial counsel because his lawyer failed to correctly advise him as to the maximum sentence he could serve, which resulted in his rejection of the plea offer and imposition of a higher sentence after he proceeded to trial; (2) the aggregate sentence of 50 years in prison violated both federal and state constitutional provisions; and (3) he was denied effective assistance of appellate counsel because his lawyer did not challenge the ineffective assistance of trial counsel in the context of the incorrect information offered by trial counsel during the plea negotiation stage of the proceedings. He also alleged that his failure to file his petition within three years from the date of his conviction was not due to his culpable negligence. At this stage, summary dismissal is reviewed de novo. People v. Coleman, 183 Ill. 2d 366 (1998).
I. 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 (725 ILCS 5/122-4 (West 2000)) provides for the appointment of counsel for an indigent defendant. 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 deprivation. Coleman, 183 Ill. 2d at 381. 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). The instant case presents a petition dismissed at the first stage of the post-conviction process. As previously noted, at the first stage, the circuit court determines whether the petition is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2000).
The 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 fell below an objective standard of reasonableness. Edwards, 195 Ill. 2d at 162. 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.
Based on the first-stage procedural posture of the instant case, the relevant question is first, whether the petition alleges a constitutional deprivation, and, second, whether the petition was substantively rebutted by the record, rendering it frivolous or patently without merit. 725 ILCS 5/122-2.1(West 2000); Coleman, 183 Ill. 2d at 382. We note, in the instant case, Judge Palmer did not address the merits of the petition, but dismissed the petition for being untimely.
II. PETITION ALLEGES CONSTITUTIONAL DEPRIVATION UNREBUTTED BY RECORD RENDERING PETITION NEITHER FRIVOLOUS NOR PATENTLY WITHOUT MERIT
Recognizing that People v. Boclair, 202 Ill. 2d 89 (2002), precludes first-stage dismissal based on lack of timeliness, the State argues that first-stage dismissal of the petition should be affirmed: "Therefore, even if Judge Palmer erred in relying on the petition's lack of timeliness as the reason for dismissing it summarily, the petition was also frivolous and patently without merit." In Boclair, our supreme court resolved the issue of whether the circuit court can consider the timeliness of a petition at the first stage of the post-conviction process. Section 122-1 of the Act provides time limits for filing a post-conviction petition. See 725 ILCS 5/122-1 (West 2000). Boclair held that the time limit is not jurisdictional but, rather, akin to a statute of limitations. Boclair, 202 Ill. 2d at 98. The supreme court in Boclair held that the time limitations under the Act should be considered an affirmative defense that can be raised, waived, or forfeited by the State. Boclair, 202 Ill. 2d at 101. Boclair concluded that the issue of timeliness should be left for the State to assert during the second stage of the post-conviction proceedings. Boclair, 202 Ill. 2d at 101-02. Thus, in the instant case, we conclude that the trial court erred when it dismissed defendant's petition for being untimely.
However, consistent with the terms of the Act and the purpose of the first stage, we address whether the petition alleges a constitutional deprivation unrebutted by the record, rendering the petition neither frivolous nor patently without merit. 725 ILCS 5/ 122-2.1 (West 2000). Defendant alleges he was denied his right to effective assistance of trial counsel because during plea negotiations his attorney told him that the maximum sentence he could serve was 30 years. The maximum sentence actually was 60 years because of the mandatory consecutive sentencing provisions applicable in the instant case. In accordance with section 5-8-4(a)(ii) of the Unified Code of Corrections (730 ILCS 5/5-8-4(a)(ii) (West 2000)), a consecutive sentence for aggravated sexual assault is mandatory in the context of the instant case, where defendant was convicted of aggravated criminal sexual assault, home invasion, armed robbery, and armed violence. 730 ILCS 5/5-8-4(a)(ii) (West 2000).
Defendant's unrebutted affidavit states that trial counsel told him that the maximum to which he could be sentenced was 30 years in prison. The record reflects trial counsel's statement at the sentencing hearing that "The [S]tate is asking based on the same occurrence for all these Class X's of which they charge, the same occurrence they are asking for consecutive sentences which we maintain is improper." However, that assertion made by trial counsel is in conflict with the applicable law contained in the subsection (ii) sentencing provision of section 5-8-4(a) regarding mandatory consecutive sentencing for aggravated sexual assault. Additionally, we note that the docketing statement filed by trial counsel contends that the "offenses were all allegedly committed during one transaction and it was error to sentence defendant to a consecutive sentence." That statement is also in direct conflict with section 5-8-4(a)(ii).
Defendant claims that he relied on the alleged incorrect information provided by trial counsel and rejected an offer to plead guilty in exchange for 22 years in prison because he thought the maximum sentence he could serve was 30 years. Defendant alleged that since he thought he faced a maximum sentence of 30 years, which was only 8 years more than he was offered in return for a guilty plea, he decided to go to trial. He indicated that he ...