Appeal from the Circuit Court of Cook County. No.02 CR 2148(01) Honorable Dennis J. Porter, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Garcia
PRESIDING JUSTICE GARCIA delivered the judgment of the court, with opinion. Justices McBride and R.E. Gordon concurred in the judgment and opinion.
¶ 1 The circuit court summarily dismissed the defendant's post-conviction petition in which he asserted, among other claims, ineffective assistance of trial counsel based on his allegation that counsel deprived him of his right to testify and that appellate counsel rendered ineffective assistance when he failed to raise "wholly meritorious" issues on direct appeal. Alternatively, he contends that even if his petition was subject to summary dismissal, it was constitutionally impermissible to assess him court costs and to allow those costs to be deducted from his prisoner trust account. We conclude trial counsel provided objectively reasonable assistance when he advised the defendant, in light of the evidence, not to testify. Appellate counsel did not render ineffective assistance on direct appeal when counsel's decision to forego raising certain issues, in favor of others, fell within the wide range of reasonable professional assistance. Finally, the defendant was not deprived of any constitutional right when he was assessed $105 in court costs in connection with the filing of this frivolous and patently without merit petition; nor was it error to permit the deduction of the costs from the defendant's prisoner trust account. We affirm the summary dismissal and the imposition and collection of court costs.
¶ 3 Defendant Jonathon Coleman was convicted of first degree murder in the December 2001 shooting death of Ricardo Cabrales, which the jury found the defendant proximately caused by the use of a firearm. He was sentenced to an aggregate term of 65 years. On direct appeal, we affirmed his conviction and sentence. People v. Coleman, 1-05-1008 (Mar. 2, 2007) (unpublished order under Supreme Court Rule 23). The supreme court denied his petition for leave to appeal. People v. Coleman, 224 Ill. 2d 580 (2007). On November 10, 2008, the defendant filed the instant pro se post-conviction petition, which the circuit court found frivolous and patently without merit.
¶ 4 We briefly summarize the evidence from the defendant's jury trial. The defendant and his brother were both reputed members of the Latin Kings street gang, while the victim was a member of the rival Latin Dragons gang. Several witnesses testified that the neighborhood where the shooting took place was dominated by the Latin Kings and that the two gangs were at war when the shooting occurred. On the day of the shooting, the victim had been working on his car in front of his house before walking to a nearby garage. At the garage, he was given a bottle of radiator fluid and he headed back to his home through an alley. While walking down the alley he was approached from behind by a maroon-colored car. Witnesses heard several gunshots and heard the victim scream. One witness described seeing the maroon car drive away from the scene of the shooting with the barrel of a gun sticking out the window. Three witnesses saw the defendant and his brother driving in a vehicle matching that description. One witness testified he saw the defendant sitting in the backseat of the car as it sped away from the scene of the shooting with the defendant's brother at the wheel. Each of these witnesses identified the defendant in a lineup.
¶ 5 A detective testified the defendant confessed to the crime during his custodial interrogation, though the detective failed to memorialize the confession. According to the detective, the defendant stated he and his brother were driving around the neighborhood looking for marijuana when they saw the victim working on his car. The defendant claimed the victim had shot at him in the past and the defendant wanted to avenge the shooting. The brothers obtained a rifle from a fellow Latin King and returned to search out the victim. When they located him in the alley, they drove up behind him and the defendant opened fire. The victim died of multiple gunshot wounds. Investigating officers were never able to recover the firearm or the vehicle used in the homicide.
¶ 6 Post-conviction Petition
¶ 7 The defendant filed a 31-page post-conviction petition, raising 11 constitutional claims, some with subparts, with citation to authority for each of his claims. The petition concluded with sections titled "Waiver" and "Fundamental Fairness." Before this court, the defendant raises only two constitutional claims: ineffectiveness of trial counsel and ineffectiveness of appellate counsel. The defendant alleged in his petition that his "trial counsel prevented him from testifying in his defense." He also claimed defense counsel never fully explained his right to testify. The defendant alleged appellate counsel was ineffective because he failed to challenge "wholly meritorious issues on appeal." In his brief, the defendant argues that specific remarks during the State's closing argument, which we set out below in detail, were completely unsupported by the evidence at trial.
¶ 9 Alternatively, the defendant contends that even if his post-conviction petition was properly dismissed, the circuit court erred in assessing $105 in court costs for filing a frivolous petition. He argues the assessment of fees violates both his due process and equal protection rights and it was improper for the court to permit the payment of the costs from the funds in his prisoner trust account.
¶ 11 The Illinois Post-Conviction Hearing Act (Act) provides any person imprisoned in the penitentiary the right to relief if he can establish that "in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois." 725 ILCS 5/122-1(a)(1) (West 2008). However, a post-conviction petition may be summarily dismissed if "the court determines the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2008). A frivolous or patently without merit post-conviction petition is a "petition [that] has no arguable basis either in law or in fact." People v. Hodges, 234 Ill. 2d 1, 12 (2009). An example of "[a] petition [that] lacks an arguable basis either in law or in fact is one *** based on an indisputably meritless legal theory or a fanciful factual allegation." Id. at 16.
¶ 12 Under Hodges, when a post-conviction defendant asserts a claim of ineffective assistance of counsel, a court of review asks whether "(i) it is arguable that counsel's performance fell below an objective standard of reasonableness and (ii) it is arguable that the defendant was prejudiced." Id. at 17; see Strickland v. Washington, 466 U.S. 668, 687 (1984); People v. Albanese, 104 Ill. 2d 504 (1984). To prove deficient performance, a defendant must show that counsel's performance was objectively unreasonable under prevailing professional norms. Strickland, 466 U.S. at 688-89. To prove prejudice there must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694. The same standard applies to trial and appellate counsel. People v. Tenner, 175 Ill. 2d 372, 378 (1997). Summary dismissals are reviewed de novo. People v. Coleman, 183 Ill. 2d 366, 389 (1998).
¶ 13 Claims of ineffective assistance of counsel are reviewed with certain principles in mind. "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
¶ 15 In his pro se petition, the defendant raised a single claim of ineffective assistance of trial counsel that he divided into four subparts. We quote from the only subpart that asserted the defendant's right to testify was infringed upon: "Petitioner was denied effective assistance of counsel where trial counsel prevented him from testifying in his defense and failed to advise petitioner that he had a right to testify." According to the defendant, he spoke to defense counsel before his case went to trial. The defendant alleges, "petitioner notified his attorney that he wanted to explain his innocence and asked his attorney if he could do so." Defense counsel replied "by saying ' it would be a bad idea for me to put you on the stand at trial because it will give the state the opportunity to bring up your background, also because it will be the police's word against yours.' " The defendant did not testify at trial.
¶ 16 The Post-Conviction Act provides: "Any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived." 725 ILCS 5/122-3 (West 2008). Our supreme court has repeatedly reminded the appellate court that it is not free to ignore the clear language of the Act. "Any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived." People v. Davis, 156 Ill. 2d 149, 158-60 (1993). See People v. Jones, 213 Ill. 2d 498, 508 (2004) ("[T]he appellate court raised the issue sua sponte despite the fact that defendant neither included it in his post-conviction petition nor argued it in his appellate brief. Under the clear language of the Act and under this court's own case law, the appellate court should not have acted in such manner.").
¶ 17 Nor does the fundamental fairness doctrine give us authority to review an issue not raised in the defendant's post-conviction petition. Only the supreme court has authority to disregard forfeiture to maintain "a sound and uniform body of precedent which may sometimes ' "override the considerations of waiver that stem from the adversary character of our system." ' " People v. Jones, 211 Ill. 2d 140, 145 (2004) (quoting People v. De La Paz, 204 Ill. 2d 426, 432-33 (2003), quoting Hux v. Raben, 38 Ill. 2d 223, 225 (1967)). ...