Appeal from Circuit Court of Champaign County No. 87CF859 Honorable Jeffrey B. Ford, Judge Presiding.
The opinion of the court was delivered by: Justice Cook
JUSTICE COOK delivered the judgment of the court, with opinion. Presiding Justice Turner and Justice Pope concurred in the judgment, with opinion.
¶ 1 This appeal comes to us on the motion of the office of the State Appellate Defender (OSAD) to withdraw as counsel on appeal because no meritorious issues can be raised in this case. For the following reasons, we agree and affirm.
¶ 3 In July 1987, defendant, James L. Terry, was indicted for aggravated criminal sexual assault, a Class X felony (Ill. Rev. Stat. 1987, ch. 38, ¶ 12-14(a)(1)), and unlawful use of weapons by a felon, a Class 3 felony (Ill. Rev. Stat. 1987, ch. 38, ¶ 24-1.1). In October 1987, defendant was charged by information with two counts of aggravated criminal sexual assault and one count of unlawful use of weapons by a felon.
¶ 4 Following an October 1987 jury trial, defendant was found guilty of both offenses.
He was later sentenced to a term of natural life for aggravated criminal sexual assault and to 10 years' imprisonment for unlawful use of weapons by a felon, to run concurrently.
¶ 5 Defendant appealed, arguing that the trial court (1) deprived him of his constitutional right to counsel of his choice by denying his request for a continuance for the purpose of retaining counsel; (2) erred by failing to admonish him of his right to proceed pro se; (3) erred by refusing to accept his waiver of his right to be present for the trial; (4) denied defendant a fair trial since the jury was improperly instructed as to the offense of aggravated criminal sexual assault because the necessary mental state was not incorporated into the jury instructions; (5) erred by allowing the trial to proceed on improperly joined offenses; and (6) improperly sentenced defendant. People v. Terry, 177 Ill. App. 3d 185, 532 N.E.2d 568 (1988).
¶ 6 In December 1988, this court affirmed defendant's convictions, finding (1) defendant was not entitled to a continuance to obtain new counsel; (2) defendant was not entitled to a sua sponte admonition by the trial court regarding his right to represent himself; (3) any error in requiring defendant to be present at trial was harmless; (4) the mental state was not a necessary element of the issues instruction; (5) joinder of the offenses was not improper; and (6) defendant's prior rape conviction was properly considered a Class X felony for purposes of the habitual-offender statute. Id. Defendant's petition for leave to appeal was denied in June 1989. People v. Terry, 126 Ill. 2d 565, 541 N.E.2d 1114 (1989) (table).
¶ 7 In January 1991, defendant filed a petition for writ of habeas corpus with the federal district court, setting forth the same six claims he raised on direct appeal. In June 1991, the court dismissed defendant's sentencing claim as it was not subject to federal habeas corpus review and ordered the State to respond to the five remaining claims. In June 1993, the district court denied defendant's habeas corpus petition on its merits.
¶ 8 In February 2010, over 22 years after his convictions, defendant filed a pro se petition for post-conviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-8 (West 2008)) claiming the following: (1) the trial court denied him his sixth-amendment right to counsel of his choice and erroneously advised him that he was only entitled to representation from the public defender's office; (2) the trial court erred in allowing the prosecutor to amend the grand jury indictment without returning the matter to the grand jury; and (3) the July 9, 1987, indictment failed to charge the offense of aggravated criminal sexual assault, rendering it void.
¶ 9 Fourteen days after it was filed, the trial court summarily dismissed defendant's post-conviction petition in a written order, finding defendant's claims frivolous and patently without merit. The court found defendant's claim that he was denied his sixth-amendment right to counsel of his choice was barred by the doctrine of res judicata, as the same issue had been raised and rejected both on direct appeal and in defendant's federal habeas corpus petition. Further, the court held that even absent res judicata, no constitutional error occurred. The court also noted in its dismissal order that defendant's last two claims could have been raised on direct appeal or in federal court and thus were res judicata. Further analyzing the claims, the court stated that defendant "does not cite any law saying that the State is not allowed to file new counts and then proceed with a preliminary hearing to determine probable cause." Last, the court found that the indictment sufficiently apprised defendant of the nature of the charges against him and was not deficient.
¶ 10 Defendant filed a timely pro se notice of appeal and OSAD was appointed to represent him. In February 2011, OSAD moved to withdraw, including in its motion a brief in conformity with the requirements of Pennsylvania v. Finley, 481 U.S. 551 (1987). The record shows service of the motion on defendant, who is currently in prison. On its own motion, this court granted defendant leave to file additional points and authorities by March 30, 2011. Defendant timely filed additional points and authorities. The State responded. After examining the record and executing our duties in accordance with Finley, we grant OSAD's motion and affirm the trial court's judgment.
¶ 12 OSAD moves for leave to withdraw as counsel on appeal because any request for review would be frivolous and without merit. We agree.
¶ 13 A. Timeliness of Trial Court's Dismissal
¶ 14 Under section 122-2.1(a)(2) of the Post-Conviction Hearing Act (725 ILCS 5/122-2.1(a)(2) (West 2010)), a trial court is required to examine a defendant's post-conviction petition and enter an order on the petition within 90 days of the date it was filed and docketed. Upon determining the petition is frivolous and patently without merit, the court must provide defendant with a written order dismissing the petition within 10 days of its entry. 725 ILCS 5/122-2.1(a)(2) (West 2010). The order must specify the findings of fact and conclusions of law it made in reaching its decision. Id.
¶ 15 In this case, defendant filed his post-conviction petition on February 3, 2010. On February 17, 2010, after examining the petition, the trial court determined it was frivolous and patently without merit, and dismissed it in a written order that specified the findings of fact and conclusions of law it made in reaching its decision. Notice of dismissal was sent to defendant on February 18, 2010, and defendant filed a timely notice of appeal on March 12, 2010. Because defendant's petition was dismissed 14 days after it was filed, and notice of its dismissal was sent to defendant 1 day after its entry, no colorable argument can be made that the trial court did not dismiss the petition within the statutory 90-day period.
¶ 16 B. Defendant's Post-conviction Petition
¶ 17 The Post-Conviction Hearing Act "provides a remedy for defendants who have suffered a substantial violation of their constitutional rights at trial." People v. Edwards, 197 Ill. 2d 239, 243-44, 757 N.E.2d 442, 445 (2001). An action for post-conviction relief is a collateral attack on the proceedings, not an appeal on the merits. People v. Harris, 206 Ill. 2d 1, 12, 794 N.E.2d 314, 323 (2002). "The purpose of a post-conviction proceeding is to permit inquiry into constitutional issues involved in the original conviction and sentence that were not, and could not have been, adjudicated previously on direct appeal." Id. "Issues that were raised and decided on direct appeal are barred by the doctrine of res judicata. [Citations.] Issues that could have been presented on direct appeal, but were not, are waived." Id. at 12-13, 794 N.E.2d at 323.
" '[W]here res judicata and forfeiture preclude a defendant from obtaining relief, such a claim is necessarily "frivolous" or "patently without merit." ' " People v. Alcozer, 241 Ill. 2d 248, 258-59, 948 N.E.2d 70, 77 (2011) (quoting People v. Blair, 215 Ill. 2d 427, 445, 831 N.E.2d 604, 616 (2005)). An otherwise meritorious claim has no basis in law if ...