Appeal from the Circuit Court of Kendall County. No. 04-CF-30 Honorable Grant S. Wegner, Judge, Presiding.
The opinion of the court was delivered by: Justice Birkett
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Zenoff and Schostok concurred in the judgment and opinion.
This is the appeal by defendant, David W. Komes, of the second-stage dismissal of his petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)). After the court appointed post-conviction counsel for him on a finding that the petition was not subject to first-stage dismissal, counsel sought leave to withdraw, citing People v. Greer, 212 Ill. 2d 192 (2004). The court granted counsel's motion and then dismissed the petition on the State's motion; defendant appealed. Defendant now argues that the motion was insufficient under Greer. He further argues that we cannot affirm under Greer's alternative standards for affirming such a dismissal. Greer allows a reviewing court to affirm despite an insufficient motion when, for one, the record shows that counsel complied with Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984).
We hold that the record does not show such compliance; we therefore vacate both the grant of permission to withdraw and the petition's subsequent dismissal, and we remand the matter for counsel's compliance with Rule 651(c).
Defendant was charged with six counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2002)). The charges involved two victims: J.C., 11 years old at the time of trial, and J.C.'s younger sister, M.C., 8 years old at the time of trial.
Defendant moved to suppress a statement that he made to the Yorkville police, on the ground that he had intellectual impairments that prevented him from validly waiving his Miranda rights. A court-ordered evaluation showed that he was of low-normal intelligence and had learning disabilities that particularly impaired his ability to understand spoken language. He did not understand the concept of "rights," but did understand specific rights. Based on this report, defense counsel withdrew the motion to suppress.
Defendant had a jury trial, which resulted in a guilty verdict on every count. Evidence included a videotaped confession that defendant made to the Yorkville police, testimony from the two victims, and evidence of damage to the hymen of one victim. Defendant exercised his right to testify. His testimony, as transcribed, suggests below-normal communication skills.
Because two victims were involved, defendant received a non-discretionary sentence of life imprisonment (see 720 ILCS 5/12-14.1(b)(1.2) (West 2002)).
Defendant filed a direct appeal in which he asserted that the evidence was insufficient and that the court had allowed too much leading questioning of the victims. We rejected these claims. People v. Komes, No. 2-05-0246 (2006) (unpublished order under Supreme Court Rule 23).
Defendant then filed a post-conviction petition that contained what he categorized as 18 separate claims. (We count seven distinct issues.) These included claims that trial counsel was ineffective for failing to seek further evaluation of his mental status, and that the Yorkville police had coerced his confession.
He also asserted that new evidence showed that Bruce Ford, father of one of the victims and stepfather of the other, was the true perpetrator of the abuse but had coached the victims to incriminate defendant. In support of this claim, he attached newspaper clippings containing reports that, in early 2006, the Yorkville police had arrested Ford for a sex crime that Ford had committed in his own home against a female child under the age of 13, and that Ford had died about a week after the arrest. Defendant asserted that Ford had committed suicide. Defendant further asserted that a videotape of an investigative interview of the victims (which the court had suppressed on defense counsel's motion) also supported his innocence in that both the victims had made statements that implied that Ford had told them what to say.
The way the petition is written is consistent with a person with language-related intellectual impairments.
Within 90 days of the petition's filing, the court entered an order in which it ruled that "the petition [was] not subject to dismissal under §122-2.1"; it therefore appointed private counsel for defendant. The court later substituted the public defender as counsel.
The record shows seven appearances by attorneys from the public defender's office on defendant's behalf. At several of these appearances, the attorneys ...