Appeal from the Circuit Court of Cook County. No. 99 CR 2796 Honorable Vincent M. Gaughan, Judge Presiding.
The opinion of the court was delivered by: Justice Theis
Defendant Andre Rials appeals from an order of the circuit court dismissing his petition for relief under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2000)) at the second stage without granting an evidentiary hearing. For the following reasons, we affirm.
The following facts were adduced at trial. Officer Isaac Lee testified that on January 6, 1999, he observed two individuals separately approach defendant in the lobby of a Chicago Housing Authority (CHA) building and hand him money. On each occasion, after receiving the money, defendant handed the individuals items contained in a clear sandwich plastic bag he was holding. Officer Lee, who was approximately 10 feet away when he observed these exchanges, radioed back-up officers a description of the two individuals who had approached defendant. Officer Lee then detained defendant, searched him, and found $552 and 15 small plastic bags on his person containing a rock-like substance suspected to be cocaine. The two individuals who had approached defendant were also detained, and small bags containing a white rock-like substance suspected to be cocaine were recovered from each of them. Officer Lee inventoried the bags recovered from defendant under inventory No. 2118073 and the bags recovered from the other two individuals under inventory Nos. 2118072 and 2118070.
Bradley Fleming, a forensic drug chemist, was found to be an expert in the area of analysis of controlled substances and chemistry. He testified that he examined the contents of the bags inventoried under No. 2118073 and determined that they weighed 1.1 grams and tested positive for cocaine in preliminary screening and confirmatory tests. He also tested the contents of the bags inventoried under Nos. 2118072 and 2118070 and determined that they contained cocaine.
On January 12, 2000, following a bench trial, defendant was convicted of possession of a controlled substance with intent to deliver on residential property owned, operated and managed by the CHA and was sentenced to 10 years' imprisonment. Defendant appealed and his counsel filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). Defendant filed two separate responses to the Anders motion, contending that the evidence was insufficient to establish his guilt, the trial court improperly denied his request for treatment under the Illinois Alcoholism and Other Drug Abuse and Dependency Act (20 ILCS 301/1-1 et seq. (West 1998)), his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and amendments to two statutes under which he was convicted were found unconstitutional. Rejecting defendant's arguments, this court granted defense counsel's motion to withdraw and affirmed the trial court's judgment. People v. Rials, No. 1-00-1879 (August 31, 2001) (unpublished order under Supreme Court Rule 23).
While defendant's direct appeal was pending, defendant filed a pro se post-conviction petition on October 5, 2000. In his petition, defendant attacked only his sentence and argued that Public Acts 88-680 and 89-404, which were found to violate the single subject rule in People v. Cervantes, 189 Ill. 2d 80, 723 N.E.2d 265 (1999), and People v. Reedy, 186 Ill. 2d 1, 708 N.E.2d 1114 (1999), affected his case and violated his constitutional rights, and generally cited the fifth, sixth, eighth and fourteenth amendments of the United States Constitution. The trial court appointed the Public Defender's office to represent defendant in the post-conviction proceedings. The State then filed a motion to dismiss defendant's petition, contending that defendant's allegations failed to make a substantial showing of a denial of defendant's constitutional rights because neither Public Act applied to defendant's case. Post-conviction counsel did not amend defendant's pro se petition, but filed a certificate of compliance under Supreme Court Rule 651(c), certifying that she consulted with defendant by letter and telephone on "numerous occasions to ascertain his contentions of deprivations of constitutional rights," "obtained and examined the Report of Proceedings" of defendant's trial, and examined defendant's pro se petition and determined that because "it adequately presents his claims of deprivations of constitutional rights, there is nothing that can be added by an amended or a supplemental petition." On June 25, 2002, the trial court granted the State's motion to dismiss and defendant then filed this timely appeal.
The Act provides a remedy for defendants who have suffered a substantial violation of their constitutional rights at trial. People v. Edwards, 197 Ill. 2d 239, 243-44, 757 N.E.2d 442, 445 (2001). Petitions filed under the Act must clearly identify the alleged constitutional violations and must have attached "affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." 725 ILCS 5/122-2 (West 2000). In non-capital cases, the Act creates a three stage process for post-conviction proceedings. Edwards, 197 Ill. 2d at 244, 757 N.E.2d at 445. At the first stage, the circuit court, without input from the State, reviews the petition and determines whether, on its face, "the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2000). A post-conviction petition is considered frivolous or patently without merit if the petition's allegations, taken as true, fail to present the gist of a meritorious constitutional claim. People v. Collins, 202 Ill. 2d 59, 66, 782 N.E.2d 195, 198 (2002).
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)) and counsel may file an amended petition. People v. Boclair, 202 Ill. 2d 89, 100, 789 N.E.2d 734, 741 (2002). The instant case was dismissed by the trial court at the second stage of the process. At the second stage, the State is required to either answer or move to dismiss the petition. 725 ILCS 5/122-5 (West 2000). The trial court must then determine whether the petition and any attached documents make a substantial showing of a constitutional violation. Edwards, 197 Ill. 2d at 246, 757 N.E.2d at 446. If such a showing is made, the petition proceeds to the third stage where the court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2000); Boclair, 202 Ill. 2d at 100, 789 N.E.2d at 741. Our review of the trial court's dismissal of a post-conviction petition at the second stage is de novo. People v. Coleman, 183 Ill. 2d 366, 378-79, 701 N.E.2d 1063, 1070-71 (1998).
On appeal, defendant contends that he was denied his right to effective assistance of appellate counsel because appellate counsel failed to raise a meritorious issue, that the State failed to prove defendant guilty beyond a reasonable doubt because the expert chemist's testimony lacked the foundation necessary to prove either the weight of the substance or that it contained cocaine, relying on People v. Raney, 324 Ill. App. 3d 703, 756 N.E.2d 338 (2001). *fn1 However, we find that this issue is waived because it was not included in defendant's post-conviction petition. A defendant may not raise for the first time on appeal constitutional claims which were not actually presented in his petition. 725 ILCS 5/122-3 (West 2000) ("[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived."); People v. Moore, 189 Ill. 2d 521, 544, 727 N.E.2d 348, 360 (2000); People v. Jefferson, No. 1-01-4483 (November 26, 2003). In his petition, defendant argued only that Public Acts 88-680 and 89-404 impacted his sentence and never made these ineffective assistance of appellate counsel or insufficiency of the evidence arguments. Accordingly, we find defendant's ineffective assistance of appellate counsel argument waived.
To circumvent the waiver rule, defendant argues that he was denied reasonable assistance of post-conviction counsel where post-conviction counsel failed to amend defendant's pro se petition to add these new ineffective assistance of appellate counsel and insufficiency of the evidence arguments. The State responds that post-conviction counsel is not obligated to examine the record in search of claims or amend the petition to include claims that are unrelated to defendant's pro se contentions or not necessary to properly present the issues raised by defendant in the original pro se petition. We agree with the State.
A defendant has no constitutional right to the assistance of counsel at a post-conviction proceeding. Moore, 189 Ill. 2d at 541, 727 N.E.2d at 358. Because the source of the right to counsel in post-conviction proceedings is statutory, post-conviction petitioners are entitled only to the level of assistance provided in the Act. People v. Turner, 187 Ill. 2d 406, 410, 719 N.E.2d 725, 727-28 (1999). The degree of skill and care that a lawyer must exercise in representing a post-conviction petitioner is not "effective assistance of counsel" and is therefore, not governed by the familiar two-part test first enunciated in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v. McNeal, 194 Ill. 2d 135, 142, 742 N.E.2d 269, 273 (2000). Defendants are not entitled to receive the same level of assistance of counsel that the Constitution guarantees to defendants at trial. People v. Williams, 186 Ill. 2d 55, 60, 708 N.E.2d 1152, 1155 (1999). The Act requires only a reasonable level of assistance by appointed counsel at post-conviction proceedings. McNeal, 194 Ill. 2d at 142, 742 N.E.2d at 273; Moore, 189 Ill. 2d at 541, 727 N.E.2d at 358-59.
To that end, Supreme Court Rule 651(c) outlines the specific requirements that post-conviction counsel must fulfill in representing post-conviction petitioners. 134 Ill. 2d R. 651(c). Under Rule 651(c), the record must demonstrate that appointed counsel "has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional right, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner's contentions." 134 Ill. 2d R. 651(c). See also Turner, 187 Ill. 2d at 410, 719 N.E.2d at 728. Post-conviction counsel is not required to amend a defendant's pro se post-conviction petition. Turner, 187 Ill. 2d at 412, 719 N.E.2d at 729. Counsel's obligations under Rule 651(c) are the same in every case where post-conviction counsel is appointed, regardless of whether the defendant was sentenced to death. Turner, 187 Ill. 2d at 412, 719 N.E.2d at 729.
"[P]ostconviction counsel is not required to comb the record for issues not raised in the defendant's pro se post-conviction petition." People v. Helton, 321 Ill. App. 3d 420, 424-25, 749 N.E.2d 1007, 1011 (2001). Counsel is obligated to amend defendant's pro se petition only when necessary to adequately present the claims defendant had already raised in his petition and while counsel may add new claims, he is not required to amend defendant's pro se post-conviction ...