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People v. Coulter

August 27, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DWAYNE COULTER, 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]  We revisit this familiar case at the direction of the Illinois Supreme Court. Defendant, Dwayne Coulter, filed a pro se petition for relief under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2000)), alleging that he was denied his right to the effective assistance of counsel at a 1998 hearing held to review defendant's claims under Batson v. Kentucky, 476 U.S. 79, 90 L.Ed. 2d 69, 106 S.Ct. 1712 (1986). The trial court summarily dismissed defendant's petition as frivolous and patently without merit, and on January 16, 2004, this court vacated that dismissal and remanded this case to the trial court for second-stage post-conviction proceedings. After denying defendant's petition for leave to appeal, the Illinois Supreme Court vacated our judgment via a supervisory order dated May 26, 2004, and directed this court to reconsider its decision in light of People v. Jones, 211 Ill. 2d 140, 809 N.E.2d 1233 (2004), to determine if a different result is warranted. People v. Coulter, 808 N.E.2d 1005 (2004). For the reasons that follow, we affirm the summary dismissal of defendant's petition.

[9]  Because the procedural history of this case is lengthy, we summarize only the facts necessary to our consideration of the supreme court's supervisory order. In 1987, defendant, who is African-American, was convicted of the first degree murder of a white police officer and was sentenced to natural life imprisonment. On appeal, defendant contended that the State's use of peremptory challenges to strike several African-American venire members violated Batson v. Kentucky, 476 U.S. 79, 90 L.Ed. 2d 69, 106 S.Ct. 1712 (1986). This court disagreed and affirmed defendant's conviction. People v. Coulter, 230 Ill. App. 3d 209, 594 N.E.2d 1163 (1992) (Coulter I). After the Illinois Supreme Court denied defendant's petition for leave to appeal (People v. Coulter, 146 Ill. 2d 636, 602 N.E.2d 461 (1992)), defendant took his claim to federal court, where the Seventh Circuit Court of Appeals remanded the case to the state trial court for a new Batson hearing (Coulter v. Gilmore, 155 F. 3d 912 (1998)), which is the subject of defendant's current arguments.

[10]   In the Batson hearing on remand, the trial judge (who was a different jurist than the one who presided at defendant's trial) reviewed defendant's Batson claims and the record of jury selection at defendant's trial and heard arguments from the State and defense counsel (who were different attorneys than those at trial). The trial court ruled that the State's articulated reasons for excusing African-American venirepersons were race-neutral and not pretextual. This court affirmed, finding that the trial court comprehensively reviewed defendant's Batson claims. People v. Coulter, 321 Ill. App. 3d 644, 748 N.E.2d 240 (2001) (Coulter II), vacated, Coulter v. Illinois, 537 U.S. 1230, 155 L.Ed. 2d 194, 123 S.Ct. 1384 (2003).

[11]   On November 28, 2001, defendant filed a pro se post-conviction petition, contending that his counsel at the Batson hearing that was held on remand (referred to herein as Batson counsel) was ineffective in failing to specifically argue that the excusal of an African-American venire member, Melanie Pinkins, was improper because the State did not excuse two white venirepersons, Richard Mason and Larry Saverslak, whom defendant contends were similarly situated to Pinkins. Defendant also asserted in the petition that he was prejudiced by Batson counsel's failure to argue Pinkins' similarity to other venire members because that omission "caused the argument to be waived on review by the First District Appellate Court" in Coulter II. The petition stated that Batson counsel's performance fell below an objective standard of reasonableness and that had Batson counsel argued that the State excused Pinkins for pretextual reasons, the trial court or this court would have ordered a new trial. In a six-page written order, the trial court found the claims in defendant's petition to be frivolous and patently without merit.

[12]   This court vacated the summary dismissal of defendant's petition and remanded the case to the trial court for second-stage proceedings on defendant's post-conviction claims. People v. Coulter, 345 Ill. App. 3d 691, 692, 803 N.E.2d 932, 933 (2004). In response to the State's assertion that defendant did not include in his petition a claim that his appellate counsel in Coulter II was ineffective for failing to argue the ineffectiveness of Batson counsel, and that defendant had therefore waived his claim of ineffective assistance of appellate counsel, this court held that a post-conviction petition cannot be summarily dismissed on the grounds of waiver. Coulter, 345 Ill. App. 3d at 692, 803 N.E.2d at 933, citing People v. Blair, 338 Ill. App. 3d 429, 431-32, 788 N.E.2d 240, 242 (2003), appeal allowed, 205 Ill. 2d 594, 803 N.E.2d 486 (2003). We noted that the purpose of the first-stage review of a post-conviction petition is to determine a petition's substantive merit, not to assess the defendant's procedural compliance with the Act. Coulter, 345 Ill. App. 3d at 692, 803 N.E.2d at 933.

[13]   The Illinois Supreme Court has vacated that judgment and ordered us to reconsider our judgment in light of Jones, in which the court recently held that a defendant may not raise an issue for the first time on appeal from the dismissal of a post-conviction petition if the petition failed to include that particular argument. Jones, 211 Ill. 2d at 148, 809 N.E.2d at 1239. In Jones, the defendant filed a pro se post-conviction petition arguing that neither the trial court nor trial counsel admonished her regarding the possibility of consecutive sentences. Jones, 211 Ill. 2d at 143, 809 N.E.2d at 1235-36. After the defendant's petition was summarily dismissed as frivolous and patently without merit, the defendant appealed, raising two contentions that were not included in her post-conviction petition, including the ineffective assistance of her prior appellate counsel in her two direct appeals. Jones, 211 Ill. 2d at 143, 809 N.E.2d at 1236. The appellate court held that the defendant could not raise new issues on appeal from the dismissal of the petition, citing People v. McNeal, 194 Ill. 2d 135, 742 N.E.2d 269 (2000), and section 122-3 of the Act (725 ILCS 5/122-3 (West 2000)), which states that any claim of substantial denial of constitutional rights that was not raised in the defendant's original petition or an amended petition is waived. Jones, 211 Ill. 2d at 146, 809 N.E.2d at 1237-38. The appellate court also noted that while a defendant's failure to raise a claim of ineffective assistance of appellate counsel is excused when the same attorney who represented the defendant on direct appeal also represented the defendant at the first-stage of post-conviction proceedings, that was not true in the case before it. Jones, 211 Ill. 2d at 146-47, 809 N.E.2d at 1238. The supreme court affirmed, stating that under McNeal and People v. Davis, 156 Ill. 2d 149, 619 N.E.2d 750 (1993), a defendant cannot raise an issue on appeal from the dismissal of a post-conviction petition if the issue was not included in the petition. Jones, 211 Ill. 2d at 148, 809 N.E.2d at 1239.

[14]   We welcome this opportunity to again consider this defendant's post-conviction petition, since it enables us to explain our treatment of the petition as an initial filing under the Act. We note that in the trial court's order dismissing defendant's claims as frivolous and patently without merit, and in the report of proceedings on the petition, the trial court referred to defendant's post-conviction filing as his "third successive petition." The Act contemplates the filing of only one post-conviction petition. People v. Free, 122 Ill. 2d 367, 375, 522 N.E.2d 1184, 1188 (1989). Defendant's case has been before the trial court three times (after the remands in Coulter I and Coulter II and again to consider this petition). However, the record does not contain any previous post-conviction petitions brought under the Act or any reports of proceedings on those petitions. Defendant does not characterize his present petition as a successive filing; moreover, the record does not include or makes reference to any previous post-conviction petitions brought by defendant. Given those facts, we will address defendant's petition as an initial filing under the Act.

[15]   In response to the supreme court's remand in light of Jones, defendant has filed a supplemental brief asserting that Jones is inapplicable because he raised the gist of his ineffective assistance of appellate counsel claim in his petition, unlike the defendant in Jones who raised entirely new issues on appeal. Defendant acknowledges that the petition did not specifically state that his appellate counsel in Coulter II caused the forfeiture of the argument of Batson counsel's ineffectiveness; however, he argues that his petition contained the legal basis of that claim. The Office of the Cook County State's Attorney did not file a brief responding to those arguments. However, we can consider this case on the appellant's brief alone. See First Capital Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976).

[16]   Defendant's petition alleges that his Batson counsel was ineffective in failing to argue that prosecutors offered pretextual reasons for excluding Mason and Saverslak, whom defendant claims were similarly situated to Pinkins. The petition also states that Batson counsel's failure to raise that point "caused the argument to be waived on review" by this court in Coulter II. We do not find that defendant's contention as to the performance of Batson counsel implicates the effectiveness of his appellate counsel in Coulter II. Rather, the petition states a result of Batson counsel's alleged ineffectiveness: Batson counsel did not argue Pinkins' similarity to other prospective jurors at the Batson hearing, and this court in Coulter II considered that argument to be waived on appeal due to Batson counsel's failure to raise the issue in the trial court. Therefore, we reject defendant's contention that he raised a claim of ineffective assistance of appellate counsel in his petition.

[17]   A defendant's failure to raise a claim of ineffective assistance of appellate counsel in a post-conviction petition can be excused if the attorney who represented the defendant on direct appeal also represented the defendant at the initial stage of post-conviction proceedings, under the rationale that counsel is not expected to raise as a post-conviction claim the issue of his or her own ineffectiveness in handling the defendant's direct appeal. People v. Erickson, 183 Ill. 2d 213, 223, 700 N.E.2d 1027, 1032 (1998). Here, the State Appellate Defender handled defendant's direct appeal in Coulter II, following the Batson hearing, and the State Appellate Defender now represents defendant in his appeal from the dismissal of his post-conviction petition. However, at the first stage of post-conviction proceedings, defendant is not entitled to the appointment of counsel to assist in the preparation of his petition, and the petition was filed pro se.*fn1 Therefore, the same counsel who handled defendant's direct appeal did not also argue defendant's post-conviction claim to the trial court. Because defendant raised an issue on appeal from the dismissal of his post-conviction petition that was not included in the petition, namely the ineffective assistance of appellate counsel in Coulter II, Jones requires this court to find that defendant waived that issue. See also 725 ILCS 5/122-3 (West 2000).

[18]   Nevertheless, in the interest of fundamental fairness, this court may resolve an issue notwithstanding its waiver. As our supreme court has observed:

[19]   "[T]he general rule is that where a question is not raised or reserved in the trial court, or where, though raised in the lower court, it is not urged or argued on appeal, it will not be considered and will be deemed to have been waived. However, this is a rule of administration and not of jurisdiction or power, and it will not operate to deprive an accused of his constitutional rights of due process."

[20]   People v. De La Paz, 204 Ill. 2d 426, 432, 791 N.E.2d 489, 493 (2003), quoting People v. Burson, 11 ...


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