Appeal from the Circuit Court of Cook County. Honorable Evelyn B. Clay, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice O'mara Frossard
Following a bench trial in 1997, defendant Tommie Washington was convicted of possession of 1.2 grams of heroin, a controlled substance, with intent to deliver and sentenced to prison for 22 years. This court affirmed defendant's conviction and sentence on appeal. People v. Washington, No. 1-98-0987 (1999) (unpublished order under Supreme Court Rule 23). On April 1, 1999, defendant filed a pro se post-conviction petition which was summarily dismissed. This court affirmed the summary dismissal. People v. Washington, No. 1-99-1608 (2000) (unpublished order under Supreme Court Rule 23). On June 28, 2002, defendant filed a second pro se post-conviction petition which was summarily dismissed. Defendant appeals that dismissal contending that he raised a valid free-standing claim of actual innocence based on newly discovered evidence. We reverse.
As an initial matter, we address the State's motion to compel defendant to file a complete record, including the trial record or, in the alternative, to strike defendant's brief, which we have taken with the case. Defendant maintains that the record, as filed, is sufficient for purposes of rendering a decision in this matter. We disagree and, therefore, granted the State's motion. Defendant filed the complete record. Our review of the dismissal of defendant's post-conviction petition is de novo. People v. Coleman, 183 Ill. 2d 366, 388-389 (1998). In resolving the instant appeal we reviewed the complete record including the trial record, as well as the post-conviction record.
As this case has been before us previously, we take judicial notice of the orders entered in People v. Washington, No. 1-98-0987 (1999) (unpublished order under Supreme Court Rule 23), and People v. Washington, No. 1-99-1608 (2000) (unpublished order under Supreme Court Rule 23). During defendant's 1997 bench trial, the State's evidence showed that a police officer saw defendant engage in a suspected drug transaction on the corner of Walnut Street and Homan Avenue in Chicago. As the officer approached him, defendant dropped a brown paper bag containing 11 packets of heroin. According to defendant's version of the events, he was waiting in line at a store near Walnut Street and Homan Avenue when police officers pulled him outside and asked him if he had a gun. The officers subsequently arrested defendant and it was not until later that defendant learned he had been charged with a drug offense. Defendant was convicted of possession of a controlled substance with intent to deliver. The bag recovered by the police contained 1.1 grams of powder; the contents tested positive for the presence of .1 gram of heroin. Defendant was convicted and sentenced to 22 years in the Illinois state penitentiary for possession of a controlled substance with intent to deliver.
On May 24, 1999, this court affirmed defendant's conviction and sentence on direct appeal. People v. Washington, No. 1-98-0987 (1999) (unpublished order under Supreme Court Rule 23). The sole issue on direct appeal was whether the trial court relied on an improper aggravating factor at sentencing, namely, that defendant lied on the stand. Defendant's sentence was affirmed on direct appeal.
On April 1, 1999, defendant filed a pro se post-conviction petition, alleging inter alia, ineffective assistance of both trial and appellate counsel. The trial court dismissed the petition as frivolous and patently without merit. This court affirmed the summary dismissal. People v. Washington, No. 1-99-1608 (2000) (unpublished order under Supreme Court Rule 23).
On June 28, 2002, defendant filed a second pro se post-conviction petition alleging that newly discovered evidence supported a free-standing claim of actual innocence. In his petition, defendant alleged that he met fellow inmate Larry Stuckey in the prison library. Following their conversation, defendant learned that on the day he was arrested near the corner of Walnut Street and Homan Avenue, Stuckey had been selling drugs on that same corner. Stuckey's affidavit dated June 17, 2002, stated that Stuckey dropped a bag of narcotics on the ground and fled the scene when he saw a detective's car approach. Defendant alleged that the officers mistook him for Stuckey. According to the affidavit, defendant did not learn of this information until May 19, 2002.
Defendant also attached a written statement, which was not notarized, from Thomas Liles, a victim in a 1997 armed robbery case for which defendant had been arrested and charged. The statement, which was dated August 26, 1997, indicated that Liles initially identified defendant as the robber. However, Liles recanted the identification, identified Stuckey as one of the robbers, and defendant was found not guilty.
On September 20, 2002, the trial court summarily dismissed defendant's petition in the instant case as frivolous and patently without merit. On appeal, defendant contends that he sufficiently alleged a claim of actual innocence in that the police mistakenly arrested him instead of Stuckey.
POST-CONVICTION HEARING ACT
The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2002)) provides that a defendant may challenge his conviction by alleging "that in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both." 725 ILCS 5/122-1 (West 2002); see People v. Tenner, 175 Ill. 2d 372, 377 (1997). A petition filed under the Act must "clearly set forth the respects in which petitioner's constitutional rights were violated." 725 ILCS 5/122-2 (West 2002). The petition shall 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 2002); see People v. Collins, 202 Ill. 2d 59, 66 (2002). Post-conviction relief is a collateral proceeding, not an appeal from the underlying judgment. People v. Evans, 186 Ill. 2d 83, 89 (1999).
In cases not involving the death penalty, the Act establishes a three-stage process for adjudicating a petition for post-conviction relief. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). At the first stage of a post-conviction proceeding, the circuit court determines whether the petition alleges a constitutional infirmity that, if proven, would necessitate relief under the Act. Coleman, 183 Ill. 2d at 380. The first stage presents a pleading question. Unless positively rebutted by the record, all well-pleaded facts are taken as true at this stage, and the trial court's determination is subject to de novo review. Coleman, 183 Ill. 2d at 385, 388-89.
A pro se 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." Gaultney, 174 Ill. 2d at 418, citing People v. Porter, 122 Ill. 2d 64, 74 (1988). The "gist" standard is "a low threshold." Gaultney, 174 Ill. 2d at 418. To set forth the "gist" of a constitutional claim, the post-conviction petition "need only present a limited amount of detail" (Gaultney, 174 Ill. 2d at 418) and hence need not set forth the claim in its entirety. Further, the petition need not include "legal arguments or [citations] to legal authority." Gaultney, 174 Ill. 2d at 418.
If the petition is not dismissed and survives the first stage of the post-conviction process then subsection (b) of section 122-2.1 of the Act provides that "*** the court shall order the petition to be docketed for further consideration in accordance with Sections 122-4 through 122-6." 725 ILCS 5/122-2.1(b) (West 2002). At the second stage of the post-conviction process, the State is required to either answer the pleading or move to dismiss. 725 ILCS 5/122-5 (West 2002). If at the second stage the State files a motion to dismiss, the trial court must rule on the legal sufficiency of the defendant's allegations, taking all well-pleaded facts as true. People v. Ward, 187 Ill. 2d 249, 255 (1999). If at the second stage a ...