Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois No. 00--CF--70 Honorable Clark E. Erickson, Judge, Presiding.
The opinion of the court was delivered by: Justice Schmidt
The defendant, Shawn Petrenko, was found guilty following a jury trial of first degree murder and residential burglary, in violation of sections 9--1 and 19--3 of the Criminal Code of 1961 (the Code) (720 ILCS 5/9--1, 19--3 (West 2000)). He was sentenced to one term of natural life for murder and a consecutive term of 10 years for residential burglary. This appeal arises from the dismissal of defendant's post-conviction petition that the circuit court of Kankakee County found to be frivolous and without merit. Defendant argues that the circuit court erred in finding that he failed to allege the gist of a constitutional claim in his petition. Defendant also alleges that it was error to sentence him to a 10-year term of imprisonment that runs consecutively to his term of natural life.
On March 3, 2000, defendant was indicted on four counts of first degree murder, one count of armed robbery, and one count of residential burglary. Following a jury trial, defendant was found guilty of one count of first degree murder and one count of residential burglary. Defendant appealed, claiming that he was denied a fair trial because the prosecutor misstated the evidence during closing argument and that the trial court erred in admitting a hammer into evidence. Finding harmless error, this court affirmed in an unpublished order (People v. Petrenko, No. 3--07--0507 (April 25, 2005) (unpublished order under Supreme Court Rule
23). The supreme court denied defendant's petition for leave to appeal. People v. Petrenko, 216 Ill. 2d 720, 839 N.E.2d 1033 (2005). Subsequently, on March 16, 2006, defendant filed a post-conviction petition, claiming ineffective assistance of counsel at both the trial and appellate proceedings. The circuit court of Kankakee County found defendant's petition to be frivolous and without merit and dismissed it in the first stage of the post-conviction proceedings. This appeal followed.
Defendant's post-conviction petition alleged that his trial counsel was constitutionally ineffective for failing to file a motion for a Franks hearing contesting the validity of a search warrant. Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). In support of this allegation, he claims that the officer who applied for the warrant presented facts to the court with a reckless disregard for the truth. He further alleged that his appellate counsel was ineffective on direct appeal for failure to file an ineffective assistance of counsel claim against trial counsel. For the first time in this appeal, defendant also alleges that his sentence is void and should be modified, claiming no sentence is permitted to run consecutive to a natural life sentence.
A review of the record indicates that on January 30, 2000, the victim, Rubin Rivas, was found dead in his home, having been hit in the head with a hammer or similar object nine times. The evidence used to tie the defendant to the crime, as enumerated in the affidavit and complaint for search warrant, included: a left-handed white glove with red, blue, and white paint on it found in the victim's house; a right-handed white glove with red, blue, and white paint on it found in defendant's garbage; mail addressed to the victim found in defendant's garbage; a metal object broken off in the lock of the victim's back door; a broken key with the tip missing found in defendant's garbage; and defendant's fingerprint found on the victim's empty jar that normally contained the victim's rent money: $450 in cash.
Based on this evidence, the circuit court issued a warrant, and additional evidence was found in the defendant's home, including the victim's brown change purse. Defendant was arrested, tried by jury, found guilty, and sentenced to consecutive terms of natural life and 10 years.
The first issue that defendant raises on appeal is whether it was proper to summarily dismiss his post-conviction petition as frivolous and patently without merit.
We review the summary dismissal of a post-conviction petition de novo. People v. Coleman, 183 Ill. 2d 366, 388-89, 701 N.E.2d 1063, 1075 (1998). The Post-Conviction Hearing Act (the Act) (725 ILCS 5/122--1 et seq. (West 2006)) provides the opportunity for criminal defendants to file a petition seeking relief if substantial violations of their federal or constitutional rights occurred. The Act sets forth a three-stage process. At the first stage, a trial court may summarily dismiss a petition if it is frivolous and patently without merit. 725 ILCS 5/122--2.1(a)(2) (West 2006).
In order to avoid such a dismissal, a post-conviction petition must state the gist of a constitutional claim. People v. Edwards, 197 Ill. 2d 239, 757 N.E.2d 442 (2001). In evaluating a petition, the trial court must construe all facts as true, unless contradicted by the record. People v. Edwards, 197 Ill. 2d at 244. A petition contradicted by the record is frivolous and patently without merit. People v. Rogers, 197 Ill. 2d 216, 222, 756 N.E.2d 831, 834 (2001).
Here, defendant argues that his post-conviction petition alleged the gist of a constitutional claim: ineffective assistance of counsel at both the trial and appellate levels.
In order to properly plead the gist of a constitutional claim for ineffective assistance of counsel, a petition must allege facts sufficient to meet both prongs of the Strickland test: first, that counsel's performance fell below an objective standard of reasonableness, and second, that the deficient performance resulted in substantial prejudice to the defendant. People v. Gale, 376 Ill. App. 3d 344, 351, 876 N.E.2d 171 (2007). The same two-prong Strickland test applies to both trial and appellate counsel alike. People v. Richardson, 189 Ill. 2d 401, 412, 727 N.E.2d 362, 369 (2000). To show prejudice at either level, defendant must show to a reasonable probability that his counsel's deficient performance resulted in an unreliable result or a fundamentally unfair proceeding. Richardson, 189 Ill. 2d at 411. Prejudice is not shown merely by enumerating ...