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People v. Sutherland

January 30, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
WILLIAM SUTHERLAND, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of Cook County Honorable Colleen McSweeney-Moore, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Gallagher

[8]  Defendant William Sutherland appeals from the trial court's first-stage dismissal of his pro se petition for relief pursuant to the Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq. (West 2000) (the Act). For the reasons discussed herein, we vacate the trial court's order dismissing defendant's post-conviction petition and remand for proceedings under sections 122-4 through 122-6 of the Act.

[9]  Following a jury trial, defendant was convicted of two counts each of attempted first degree murder, aggravated battery with a firearm, and home invasion. The trial court sentenced defendant to 30 years for each count of attempted murder and 30 years for one count of home invasion, with the sentences to be served consecutively for a total sentence of 90 years in prison.

[10]   In his direct appeal, defendant contended that: (1) the trial court abused its discretion in finding that a six-year-old child was competent to testify; (2) the State failed to prove his guilt beyond a reasonable doubt; (3) the trial court erred in incarcerating defendant's counsel overnight for contempt during the trial; and (4) prosecutors made improper statements in closing argument. Defendant also argued that his consecutive 30-year sentences violated Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and that his 90-year sentence was excessive in light of his rehabilitative potential. This court rejected those assertions and affirmed defendant's convictions and sentence. People v. Sutherland, 317 Ill. App. 3d 1117, 743 N.E.2d 1007 (2000). The Illinois Supreme Court denied defendant's petition for leave to appeal. People v. Sutherland, 195 Ill. 2d 594, 755 N.E.2d 482 (2001).

[11]   On May 23, 2001, defendant filed a pro se petition for post-conviction relief, alleging that: (1) several State witnesses offered perjured testimony; (2) due to his counsel's overnight incarceration, he was denied his right to present a defense; (3) he was denied the ability to cross-examine the six-year-old witness at a competency hearing; (4) prosecutorial misconduct prevented him from receiving a fair trial; (5) the trial court failed to address the prosecutors' misconduct; and (6) his trial counsel was ineffective in several respects. Defendant also asserted that his appellate counsel was ineffective for failing to raise some of those issues in his direct appeal.

[12]   On August 10, 2001, the trial court entered a written order dismissing defendant's post-conviction petition as frivolous and patently without merit. The trial court held that the six claims delineated above either were raised or could have been raised on direct appeal. The court stated that res judicata barred reconsideration of defendant's claim regarding his right to present a defense, as well as his allegations of prosecutorial misconduct and the trial court's purported inaction. The court held that defendant's remaining assertions were waived because they could have been raised on direct appeal. As to defendant's claims of ineffective assistance of appellate counsel, the court concluded that defendant had not shown that his attorney's failure to raise certain issues affected the outcome of his appeal.

[13]   Defendant now contends that pursuant to People v. Boclair, 202 Ill. 2d 89, 789 N.E.2d 734 (2002), the trial court improperly dismissed his post-conviction petition on waiver and res judicata grounds at the first stage of post-conviction proceedings. Defendant also argues that his petition stated the gist of a constitutional claim regarding the denial of his right to counsel. In addition, he asserts that the trial court issued an erroneous jury instruction, a contention that was not included in his post-conviction petition.

[14]   Before addressing defendant's specific assertions, it is necessary to set out the general principles of post-conviction proceedings and the three-stage procedure for analyzing petitions filed pursuant to the Act. A post-conviction petition is a collateral attack on a prior conviction and sentence, and as such, it is not a substitute for or an addendum to a direct appeal. People v. Rissley, 206 Ill. 2d 403, 411-12, 795 N.E.2d 174, 178 (2003). The scope of a post-conviction proceeding is limited to constitutional matters that have not been, and could not have been, previously adjudicated. Rissley, 206 Ill. 2d at 412, 795 N.E.2d at 179. Thus, any issues which could have been raised on direct appeal, but were not are procedurally defaulted, and any issues which were previously decided by a reviewing court are barred by the doctrine of res judicata. Rissley, 206 Ill. 2d at 412, 795 N.E.2d at 179, citing People v. Ruiz, 132 Ill. 2d 1, 547 N.E.2d 170 (1989), and People v. Silagy, 116 Ill. 2d 357, 507 N.E.2d 830 (1987). To be considered timely, a post-conviction petition must be filed within six months of the completion of direct review of the defendant's conviction, if such review is sought, or within three years of the date of the defendant's conviction, whichever is earlier. 725 ILCS 5/122-1(c) (West 2000).

[15]   At the first stage of post-conviction proceedings, the trial court examines the petition to determine whether it is frivolous or patently without merit and may dismiss the petition on that basis. 725 ILCS 5/122-2.1(a)(2) (West 2000). At this stage, neither the petitioner nor the State offers any arguments to supplement the petition; rather, the trial court makes an independent assessment whether the allegations in the petition set forth a constitutional claim for relief. Boclair, 202 Ill. 2d at 99, 789 N.E.2d at 740-41. The trial court is precluded from engaging in any fact-finding or review of matters outside the allegations of the petition. Boclair, 202 Ill. 2d at 99, 789 N.E.2d at 741. To survive dismissal at the first stage of post-conviction proceedings, the defendant's petition need only state "the gist of a constitutional claim." Boclair, 202 Ill. 2d at 99-100, 789 N.E.2d at 741. At this stage, the petition must only set forth a limited amount of detail and need not present an entire constitutional claim. People v. Edwards, 197 Ill. 2d 239, 245, 757 N.E.2d 442, 446 (2001).

[16]   If the trial court does not dismiss the post-conviction petition at this stage, the court dockets the petition for further consideration under sections 122-4 through 122-6 of the Act. 725 ILCS 5/122-2.1(b) (West 2000). At the second stage, the court may appoint counsel for the defendant if the defendant is indigent, and counsel may amend the petition. The State has 30 days to answer or move to dismiss the petition. 725 ILCS 5/122-5 (West 2000). The trial court then determines whether the allegations in the petition, as supported by the trial record or accompanying affidavits and liberally construed in favor of the petitioner, make a substantial showing of a constitutional violation. Rissley, 206 Ill. 2d at 412, 795 N.E.2d at 179. If the trial court does not dismiss the petition at this stage, the petition proceeds to the third stage of post-conviction review, where pursuant to section 122-6, the trial court holds an evidentiary hearing to resolve questions of disputed fact. On appeal, the trial court's decision to dismiss the petition without an evidentiary hearing is reviewed de novo. People v. Harris, 206 Ill. 2d 1, 13, 794 N.E.2d 314, 323-24 (2002).

[17]   Defendant's first argument to this court requires a review of Boclair and other recent cases that have refined the circumstances under which the trial court may summarily dismiss a post-conviction petition. In Boclair, our supreme court held that at the first stage of post-conviction review, a trial court cannot dismiss a post-conviction petition on the basis that the petition is untimely. Boclair, 202 Ill. 2d at 99, 789 N.E.2d at 740. Studying the Act's construction and gleaning the legislature's intent, the Boclair court noted that section 122-2.1(a)(2) orders the trial court to dismiss a petition only if it is frivolous or lacks substantive merit, not if the defendant failed to file the petition within the time limits of section 122-1(c). Boclair, 202 Ill. 2d at 99, 789 N.E.2d at 740.

[18]   Since Boclair, this court has held that, in addition to timeliness, a trial court cannot dismiss a post-conviction petition at the first stage of proceedings on grounds of res judicata or waiver. See People v. Blair, 338 Ill. App. 3d 429, 788 N.E.2d 240 (2003), appeal allowed, No. 96198 (October 7, 2003); People v. McGhee, 337 Ill. App. 3d 992, 787 N.E.2d 324 (2003). McGhee noted that although Boclair's holding only addressed the issue of timeliness, the supreme court in Boclair affirmed People v. McCain, 312 Ill. App. 3d 529, 727 N.E.2d 383 (2000), which held that post-conviction petitions could not be dismissed at the first stage of proceedings based on timeliness, waiver or res judicata. Boclair, 202 Ill. 2d at 95-96, 789 N.E.2d at 738. McGhee likened the doctrines of waiver and res judicata to the issue of timeliness, stating that waiver and res judicata do not address the substantive merits of a petition but rather "constitute procedural bars to a defendant's right to prevail on a claim, regardless of its substantive merit." McGhee, 337 Ill. App. 3d at 995, 787 N.E.2d at 326.

[19]   Less than two weeks after McGhee, Blair reached the same result, relying on Boclair and McGhee. Blair, 338 Ill. App. 3d at 432, 788 N.E.2d at 242. Furthermore, the appellate court in Blair rejected the State's request that it review the substance of the defendant's petition and affirm the petition's dismissal if the petition was frivolous or patently without merit. Blair, 338 Ill. App. 3d at 432, 788 N.E.2d at 242-43. The court noted that although it had engaged in such substantive review in the past, that review occurred only when the trial court previously had considered the merits of the petition, and the Blair court held it would be inappropriate to undertake such analysis "for the first time on appeal." Blair, 338 Ill. App. 3d at 432, 788 N.E.2d at 243.

[20]   More recently, this court addressed McGhee and Blair in People v. Etherly, No. 1-01-4166, slip op. at 2 (November 21, 2003), and held that although a first-stage dismissal cannot be based on waiver or procedural default, the trial court can dismiss a petition at that stage on the grounds of res judicata, provided that the court is not required to engage in fact-finding or consider matters outside the record. Because the Act allows dismissal at the first stage only if the petition is frivolous or lacks substantive legal merit (725 ILCS 5/122-2.1(a)(2) (West 2000)), Etherly agreed with McGhee and Blair that waiver or procedural default cannot provide the basis for summary dismissal. *fn1 Etherly, No. 1-01-4166, slip op. at 23-24. Etherly points out that the defenses of waiver and untimeliness are meant to be resolved no sooner than the second stage of post-conviction ...


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