Appeal from the Circuit Court of Cook County. No. 88 CR 18480 Honorable James B. Linn, Judge Presiding.
The opinion of the court was delivered by: Justice Lampkin
JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
Presiding Justice Hall and Justice Hoffman concurred in the judgment and opinion.
Defendant, Arthur Dent, was convicted of first degree murder and sentenced to 30 years' imprisonment. His conviction and sentence were upheld on direct appeal. People v. Dent, 230 Ill. App. 3d 238, 595 N.E.2d 18 (1992). While his direct appeal was pending, defendant filed a post-conviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1992)). That petition was dismissed. Defendant served his prison sentence. After his release and completion of parole, defendant filed a successive post-conviction petition alleging newly discovered evidence demonstrated his actual innocence. The successive petition was dismissed on its merits following second-stage review.
On appeal, defendant contends he has standing to bring the successive post-conviction petition. Defendant additionally contends the trial court erred in dismissing his petition without the benefit of a third-stage evidentiary hearing where he made a substantial showing of his actual innocence with an affidavit of the shooter. Based on the following, we affirm.
The facts were provided in detail in this court's opinion on direct appeal (Dent, 230 Ill. App. 3d at 240-41); therefore, we briefly summarize only the salient facts taken from that opinion.
Witnesses testified that defendant and Ralph James approached a group of rival gang members on a porch at 820 East Bowen, Chicago, Illinois, and fired shots from a distance of three or four feet in the direction of Andre Porter. Porter died as a result of the shooting. Defendant testified that he saw the victim on the balcony at 820 East Bowen, that he spoke to the victim and left, and that as he left he heard shots, but denied any involvement in the offense. Defendant said he was no longer a gang member at the time of the shooting.
On December 5, 1989, defendant was convicted and sentenced to a 30-year prison term. According to defendant, he was paroled on December 2, 2003.
After completing his sentence for the Porter murder, defendant filed a successive post-conviction petition on February 28, 2008. Defendant alleged newly discovered evidence demonstrated his actual innocence. In particular, defendant alleged James, who had entered a blind guilty plea for the murder of Porter and had served his sentence and completed parole, provided an affidavit in which he averred that defendant "did not participate in the planning and execution of [Porter's] shooting." The State filed a motion to dismiss the petition.
The trial court dismissed the successive petition on its merits based upon James's affidavit and the trial record. In so doing, the trial court noted that James's affidavit recognized defendant was aware James intended to commit the shooting prior to the offense taking place. The court further provided that the trial evidence demonstrated defendant told the investigating detective that he was a high ranking member of the King Cobras and he would order "hits," not carry them out. The court relied on the fact that defendant admitted he was on the balcony at 820 East Bowen to purchase marijuana from the victim. The court found that James's affidavit was inconsistent with defendant's version of the events at trial. In light of the trial testimony of the witnesses and the contradictory stories raised in the post-conviction petition, the trial court concluded "there is nothing presented here to cause this to go to a further evidentiary hearing."
Although not addressed by the trial court in dismissing defendant's successive post-conviction petition on the merits, we first address whether defendant has standing to pursue post-conviction relief where he served his sentence on the challenged ...