The opinion of the court was delivered by: Justice McDADE
Modified Upon Denial of Petition for Rehearing August 4, 2005
As corrected September 21, 2005
In this case from the circuit court of Peoria County, the defendant, William Coleman, appeals from the summary dismissal of his post-conviction petition and his motion for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2002)). In the trial from which the petitions arise, the defendant was charged with and found guilty of unlawful possession of a controlled substance with the intent to deliver and the unlawful possession of heroin. His conviction was subsequently affirmed by this court on direct appeal. On collateral review, the defendant's post-conviction petition was dismissed as frivolous and patently without merit, and on the basis that it was barred by res judicata. The section 2-1401 motion was also dismissed as barred by res judicata. The defendant appeals. We affirm in part, reverse in part and remand for further proceedings.
The underlying facts show that the defendant was present at a house at 1507 West Butler Street in Peoria when the police executed a search warrant. Upon execution of the warrant, the police discovered a significant quantity of crack cocaine, heroin, plastic baggies, and a sizable sum of money in small denomination bills. In the garage, the police discovered a rented car in which was found a utility bill for the house with the defendant's name listed as the resident.
The search warrant for the house was supported by an affidavit that asserted that a confidential informant had been present in the house several times in the month leading up to the search and that the house contained illegal contraband.
Following his conviction, the defendant appealed pro se, arguing that the trial judge should have recused himself, that he was not guilty beyond a reasonable doubt, that his possession charge was improperly enhanced from a Class 1 to a Class X felony, that he was entitled to monetary credit against his drug assessment for time served prior to trial, and that his trial counsel was ineffective for failing to move to suppress the evidence seized during the execution of the search warrant. This court affirmed the conviction, but awarded the monetary credit. People v. Coleman, No. 3-1-0539 (2003) (unpublished order under Supreme Court Rule 23).
The defendant has now filed a petition for post-conviction relief in which he asserts that the officer who wrote the affidavit in support of the search warrant invented the confidential informant and argues that his trial counsel was ineffective for failing to challenge the affidavit. He has also filed a motion for relief from judgment, pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2002)), in which he challenges his arrest and the search of the house on West Butler. He also asserts in that motion that the investigative officer gave false testimony to the grand jury and that the police failed to weigh the contraband found during the search.
The trial court summarily dismissed the post-conviction petition as frivolous and patently without merit, on the basis that the defendant waived the issues presented in the petition since they were not pursued on direct appeal. On motion of the State, the court also dismissed the section 2-1401 motion, in an ex parte proceeding, finding that the claims raised were barred by res judicata. There is no indication in the record that the defendant was served with the State's motion. The defendant now appeals the dismissal of those petitions.
I. Post-conviction Petition Claim
The defendant alleged in his post-conviction petition that he was denied effective assistance of counsel because his lawyer at trial did not challenge the legality of the search of the house on 1507 West Butler. Specifically he claims that the officer who filed for the search warrant for the residence falsified the existence of a confidential source in the supporting affidavit. The trial court summarily dismissed the petition as patently frivolous. On appeal, the defendant argues that the summary dismissal of the petition was inappropriate and that the court should have held an evidentiary hearing on the matter. The State argues that the defendant's claims in the petition are barred by res judicata and that the defendant has failed to produce an affidavit or any other evidence to support his claim about the alleged fabrication of the confidential informant. We will review the summary dismissal of defendant's post-conviction petition de novo. People v. Coleman, 183 Ill. 2d 366, 701 N.E.2d 1063 (1998).
To receive post-conviction relief, the defendant must prove a substantial deprivation of federal or state constitutional rights in the underlying trial. People v. Morgan, 187 Ill. 2d 500, 528, 719 N.E.2d 681, 697 (1999). However, the claims that the defendant may raise are limited by res judicata; those claims that have or could have been litigated previously on direct appeal are barred. People v. Winsett, 153 Ill. 2d 335, 346, 606 N.E.2d 1186, 1193 (1992).
In his current petition, the defendant challenges the sufficiency of the warrant authorizing the search of the house in which the defendant and the illegal drugs were found. The defendant challenged the constitutionality of the search on other grounds in his direct appeal. In that appeal, this court found that the defendant did not have standing to challenge the search, because he was a transitory visitor to the house. People v. Coleman, No. 3-01-0539 (2003) (unpublished order under Supreme Court Rule 23). This issue, having been litigated previously, now acts as a bar to the defendant's claim in his present post-conviction review petition. Since the defendant's petition was barred by ...