Appeal from Circuit Court of Ford County No. 98CF6 Honorable Harold J. Frobish, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
In July 1998, defendant, Anthony Jennings, pleaded guilty to one count of first degree murder (720 ILCS 5/9-1(a)(1) (West 1998)). Defendant's guilty plea was "open," meaning that no agreement existed between defendant and the State regarding defendant's sentence or the dismissal of other pending charges. In August 1998, the trial court sentenced him to 60 years in prison.
In September 2000, defendant pro se filed a petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-8 (West 2000)), alleging, in pertinent part, that he received ineffective assistance of trial counsel when his court-appointed counsel, Harvey Welch, ignored his request and failed to file a motion to reconsider sentence and a notice of appeal. The trial court later appointed post-conviction counsel, Wayne Smith, to represent defendant. Smith did not file an amended post-conviction petition.
In May 2001, the State filed a motion to dismiss defendant's pro se post-conviction petition. In August 2001, Smith filed a response to the State's motion and supplemented defendant's post-conviction petition with a September 1999 letter from Welch to defendant's mother. Following an August 2001 nonevidentiary hearing, the trial court granted the State's motion.
Defendant appeals, arguing that (1) Smith failed to provide a reasonable level of assistance because he failed to comply with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)); and (2) the trial court erred by dismissing his ineffective assistance of trial counsel claim without holding an evidentiary hearing. Because we agree with defendant's first argument, we reverse and remand for further proceedings.
In February 1998, the State charged defendant, who was then 16 years old, with one count of first degree murder (720 ILCS 5/9-1(a)(1) (West 1998)), alleging that defendant shot and killed Craig Little without legal justification and with the intent to kill. At the July 1998 guilty plea proceedings, Welch informed the trial court that defendant had agreed to enter an open guilty plea. The court informed defendant that he had been charged with committing the offense of first degree murder, which normally carried a penalty of 20 to 60 years in prison. The court also informed defendant that he could be eligible for an extended-term sentence of 60 to 100 years in prison or a sentence of natural life in prison if certain aggravating factors existed.
The State then provided the following factual basis for defendant's guilty plea. Sometime prior to February 17, 1998, defendant, Angela Little, who was Craig's estranged wife, and Carl Dueringer, Angela's then-boyfriend, agreed that Angela would pay defendant to murder Craig. On the evening of February 17, 1998, defendant and Dueringer dropped off Angela at an acquaintance's residence. Dueringer gave defendant a shotgun that Dueringer had obtained from his employer, and Dueringer and defendant drove to a location near Craig's residence. Defendant then got out of the car, walked to Craig's residence, and knocked on the back door. When Craig opened the door, defendant shot him once in the chest, causing him to fall backward down a stairwell. (Although Craig was mortally wounded, he did not die immediately.) Defendant entered Craig's residence and tried to find something to steal to make it appear as though a robbery had occurred. Defendant ultimately left the residence without taking anything and returned to the car that Dueringer was driving.
The trial court accepted the State's factual basis, found that defendant had knowingly and voluntarily entered his guilty plea, and accepted the plea.
At defendant's August 1998 sentencing hearing, the trial court considered (1) the presentence investigation report (PSI), (2) a taped telephone conversation between defendant and Angela shortly after the murder, (3) defendant's confession to police, (4) a psychological evaluation of defendant conducted by Marty Traver, a clinical psychologist, and (5) victim-impact statements from Craig's mother, father, brother, and cousin.
The PSI indicated, in pertinent part, as follows: (1) following his parents' divorce when he was eight years old, defendant had little or no parental supervision; (2) defendant dropped out of high school in the tenth grade; (3) he drank alcohol and smoked marijuana occasionally; (4) he worked full- time at McDonald's and was "never a problem" until he was fired the day after the murder for using foul language; (5) he had no prior criminal record; (6) he was remorseful and reported having nightmares about the murder; and (7) he agreed to murder Craig because (a) he believed that Craig was abusing Angela, and (b) Angela promised to give him money.
During the taped telephone conversation between defendant and Angela, defendant told her that after having shot Craig, he told Craig to "[q]uit crying you fuckin [sic] pussy." Later in the conversation, defendant told Angela that after leaving Craig's residence, he was so upset he started shaking and could not hold onto anything.
Defendant's confession indicated the following: (1) during a two-week period prior to the murder, Angela and Dueringer persistently asked defendant to murder Craig because Craig was beating Angela and Angela wanted Craig's life insurance money; (2) on the evening of the murder, defendant twice told Angela and Dueringer that he did not want to kill Craig, but they told him that he could do it and it was too late to back out; (3) after shooting Craig, defendant "stood there, frightened [and] scared" and then "tried to put [Craig] out of his misery" by shooting him in the head, but the shotgun misfired; (4) before leaving Craig's residence, defendant told Craig that he was sorry and he did not want to shoot him, but "they made [him] do it"; and (5) the primary reason he murdered Craig was because Angela told him that Craig beat her.
Traver's psychological evaluation of defendant indicated, in pertinent part, as follows: (1) defendant was of average intelligence, emotionally immature, and appeared to have poor judgment; (2) he regretted murdering Craig; (3) he had some psychopathic tendencies, including lack of remorse and empathy, which were still "in the developing ...