Appeal from the Circuit Court of Cook County. No. 03 CR 2718 Honorable Vincent M. Gaughan, Judge Presiding.
The opinion of the court was delivered by: Justice Gallagher
Defendant Solomon Hunter appeals from an order of the trial court summarily dismissing his pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2004)). On appeal, defendant contends that: (1) his petition alleged the gist of constitutional claims that his right of confrontation was violated and that his trial counsel was ineffective; and (2) he was improperly assessed fees and costs after his pro se petition was dismissed upon a finding of frivolousness.
Following a bench trial, defendant was found guilty of possession of a controlled substance and sentenced to 16 years' imprisonment. Because the proceedings of the trial are fully set out in our order on direct appeal (People v. Hunter, No. 1-03- 2250 (2005) (unpublished order under Supreme Court Rule 23)), we restate only those facts necessary to understand defendant's current appeal.
At around 6:40 p.m. on January 7, 2003, Officer Spain was conducting narcotics surveillance on the 2700 block of West Lexington Street in Chicago. Defendant was standing in the middle of the block on the south side of the street when an individual approached defendant. After the two spoke, defendant accepted money from the individual and relocated to a vacant lot approximately 10 to 12 feet from the sidewalk. He picked up a strip of tape and removed a "small shiny item" from it. Defendant returned to the individual that had given him money and gave the item to him. Officer Spain observed two similar transactions, but did not stop any of the alleged buyers. After observing the third transaction, Spain contacted Officers Town and Chin to detain defendant. Town recovered a strip of tape from the vacant lot and discovered five tinfoil packets attached to it. He then gave the strip of tape to Spain. Officer Spain inventoried the packets, heat sealed the inventory package, and sent it to the crime lab for testing. When asked if he inventoried the items "under Inventory Number 10080323," Spain replied, "[y]es, that's correct."
The parties stipulated that if called to testify, Penny Evans would first testify that she was an expert in forensic chemistry. She would also testify:
"[S]he received the items inventoried under Inventory Number 10080232 in a heat sealed condition. Chain of custody was proper at all times.
Upon receiving the inventory envelope she opened it. Inside it was five tin foil packets. She weighed the contents of the tin foil packets. The total weight was .6 grams. She then separated out of the tin foil packets the contents of [sic] that weighed .1 grams for ascertaining the presence of a controlled substance. She would testify within a reasonable degree of scientific certainty that it tested positive for [h]eroin."
Defendant did not object or show any signs of dissent when the stipulation was made.
The trial court found defendant guilty of possession of a controlled substance with intent to deliver. Prior to sentencing, defendant argued in a pro se motion for a new trial that his defense counsel was ineffective. The trial court denied defendant's motion and sentenced him as a Class X offender to 16 years' imprisonment.
Defendant appealed his convictions and we affirmed the judgment on appeal. Hunter, slip op. at 14-15. Defendant argued, inter alia, that the State failed to establish a reliable chain of custody. However, this court rejected defendant's argument, finding that the stipulation established that the chain of custody was sufficient and that the stipulated evidence sufficiently matched Officer Spain's testimony concerning the evidence. Hunter, slip op. at 9-10. Furthermore, this court found that the discrepancy in the record regarding the inventory numbers between the stipulation and Spain's testimony did not break the chain of custody. Hunter, slip op. at 10.
On November 3, 2005, defendant filed a pro se post-conviction petition alleging that he was denied his right to due process and his trial counsel was ineffective for: (1) entering into a stipulation with the State without first seeking input from defendant or discussing the matter with him; (2) stipulating to the chain of custody and failing to raise the issue of the discrepancy of inventory numbers at trial, in a motion for a directed finding, closing argument or posttrial motion; (3) failing to object to the foundation for the chemist's testimony at trial; (4) failing to call a witness, Rhonda Marks, who was willing to give favorable testimony at trial on defendant's behalf; and (5) refusing to file a motion to quash his arrest.
On December 2, 2005, the trial court reviewed the petition and determined that it was frivolous and patently without merit. Among its findings, the trial court found that defendant had not stated any facts as to how he was prejudiced by the stipulation to the chain of custody and trial counsel's failure to object to the foundation of the chemist's testimony. Therefore, his defense counsel was not ineffective under Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed. 2d 674, 693, 104 S.Ct. 2052, 2064 (1984). Furthermore, the trial court found that defense counsel's actions were a matter of trial strategy and would therefore be left undisturbed.
The trial court also entered a second order assessing defendant $90 in fees and costs, finding that his petition was frivolous in that: "1. it lacks an arguable basis in law or in fact; and 2. the claims, defenses, and other legal contentions therein are not warranted by existing law or by a non-frivolous argument for the ...