Appeal from the Circuit Court OF ILLINOIS, of Kane County. No. 06-CF-2422 Honorable T. Jordan Gallagher, Judge, Presiding.
The opinion of the court was delivered by: Justice Bowman
JUSTICE BOWMAN delivered the judgment of the court, with opinion. Justices Hutchinson and Zenoff concurred in the judgment and opinion.
¶ 1 Defendant, Tiecissies Clark, appeals the trial court's second-stage dismissal of his petition filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)) in connection with his guilty plea to attempted murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2006)). He contends that he made a substantial showing that his attorney was ineffective for failing to contact the victim, who was willing to testify in support of an insanity defense. He argues that, had he known that the victim was willing to testify, he would not have pleaded guilty and would have proceeded to trial asserting the defense. We reverse and remand for a third-stage evidentiary hearing.
¶ 3 Clark was charged with multiple offenses on September 21, 2006, in connection with the stabbing of Clark's girlfriend, Akela Dillon. Dillon subsequently obtained an order of protection against Clark.
¶ 4 In October 2006, the trial court ordered a fitness evaluation at the request of Clark's then public defender, Kiran Vasireddy. However, on November 21, 2006, Clark was represented by a new public defender, Beth Peccarelli, who withdrew the fitness issue, telling the court that she did not have a bona fide doubt as to Clark's fitness. On December 14, 2006, Peccarelli told the court that she spoke to the psychologist who had completed Clark's fitness evaluation. She said that she had not seen the written report but that, "apparently, fitness should no longer be an issue at this point."
¶ 5 On January 10, 2007, Clark entered a negotiated plea to attempted murder in exchange for a 12-year sentence of incarceration and dismissal of the other charges. The factual basis for the plea provided that, on the day of the incident, Clark and Dillon had been dating for eight months. On that day, Clark stabbed Dillon nine times while they were in an apartment, and she ran from the building into the street, where officers arrived and took her to the hospital. The prosecutor stated that, if called to testify, Dillon would say that she was aware that Clark was a diagnosed schizophrenic who was off of his medications at the time of the offense.
¶ 6 The court asked Clark if he understood the sentence and the agreement, and it asked three times whether the plea was "voluntary." Clark answered "yes." The court also admonished Clark about the rights he was giving up and his appeal rights. It did not inquire whether Clark was taking medication, inquire about discussions with his attorney, or ask him directly about his mental health.
After the factual basis was heard, the court asked: "And certainly fitness is not an issue in this case?" Peccarelli answered "no." A previous conviction in Florida was mentioned but details were not provided. The sentencing order was filed that same day.
¶ 7 On January 24, 2007, the prosecutor submitted a document entitled "Attorney's Statement," which stated that "Defendant, while listening to his schizophrenic voices, stabbed [Dillon] nine times ***. Defendant is severely mentally ill and was off his meds." The document also stated that Clark previously committed a similar crime in Florida.
¶ 8 In April 2008, Clark filed a pro se post-conviction petition, verified by a properly notarized affidavit, alleging that his counsel was ineffective because she coerced him to plead guilty under the false impression that there were no witnesses available to testify on his behalf. He alleged that Dillon was willing to testify that he was not in his correct mental state when the incident occurred. He further alleged that Dillon made several attempts to contact Peccarelli in order to testify, but Pecarelli did not contact Dillon.
¶ 9 Clark attached to the petition a notarized affidavit from Dillon, who averred that, at the time of the incident, Clark was not taking his medications and "was hearing voices which he said told him to stab me." She further averred that, while Clark was in custody, she remained in contact with him through phone calls and letters and told him that she would testify on his behalf, "because I know he didn't mean to harm me, but it was his mental health condition that prompted him to do what he did." She averred that she tried to contact Peccarelli several times, but her calls were not returned, and that Peccarelli had Clark plead guilty under the belief that no witnesses were available, which was "false and misleading information to rely on in making his decision to plead guilty." Also attached to the petition were documents showing deposits that Dillon made into Clark's inmate trust fund between September 2007 and February 2008.
¶ 10 The trial court appointed an attorney to represent Clark. On May 20, 2009, counsel filed a motion to withdraw the plea, alleging that Clark was unfit to plead guilty. On June 2, 2009, counsel filed an amended post-conviction petition, again alleging that Clark was not fit to plead guilty, alleging that the fitness evaluation had never actually been scheduled or completed once the fitness issue was withdrawn, and stating that the fitness issue should never have been withdrawn. Also included were the allegations that Clark had always maintained to his trial counsel that he suffered from mental health issues, which were "an underlying cause of the incident," and that he pleaded guilty because of undue pressure and a minimal understanding of the events occurring ...