Appeal from the Circuit Court of McHenry County. No. 06-CF-163 Honorable Rosemary Collins, Judge, Presiding.
The opinion of the court was delivered by: Justice Hutchinson
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices McLaren and Birkett concurred in the judgment and opinion.
¶ 1 Defendant, Ryan C. Kirkpatrick, appeals the trial court's second-stage dismissal of his petition filed under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/art. 122 (West 2008)). Defendant contends, inter alia, that he received the unreasonable assistance of post-conviction counsel. The State counters that (1) we lack jurisdiction or (2) we should dismiss this appeal based on defects in the pleading; or (3) we should affirm because defendant received the reasonable assistance of counsel. We affirm.
¶ 2 In 2006, defendant was indicted on two counts of threatening a public official (720 ILCS 5/12-9(a)(1)(i) (West 2004)). Following a jury trial, defendant was convicted, and he was sentenced to 14 years' imprisonment. Defendant's conviction was affirmed on direct appeal. People v. Kirkpatrick, No. 2-07-0323 (2009) (unpublished order under Supreme Court Rule 23).
¶ 3 On June 15, 2009, defendant filed a pro se post-conviction petition alleging multiple claims, including a claim that his trial counsel was unable to provide effective assistance because the trial court and the prison failed to allow communication with counsel and to allow access to discovery materials. Defendant attached various documents to the petition. On January 26, 2010, defendant filed a motion to appoint a special public defender due to a conflict of interest. On March 5, 2010, the trial court conducted a hearing. The trial court informed defendant that his petition had proceeded to the second stage and inquired "on the record" what his "position was with respect to [his] representation." Defendant responded that he wanted his trial counsel to represent him. The trial court asked, "So you're not alleging any conflict with him at all," and defendant replied, "No." The trial court granted defendant's request.
¶ 4 On August 13, 2010, counsel filed an amended petition for post-conviction relief. Counsel alleged that (1) defendant was prejudiced by the length of time that elapsed between the time the act occurred and the time of the filing of the indictment; (2) the prosecutor failed to disclose his submission for a judgeship, which resulted in a conflict of interest involved in the prosecution of this case; (3) a prosecutor erred on the record when he stated that various other crimes could not be charged as the statute of limitations had run on the crimes; and (4) he was given insufficient access to his discovery documents to assist in his defense. Counsel also filed a "Certificate of Counsel Pursuant to Illinois Supreme Court Rule 604(d)," in which he stated that he attempted to consult with defendant, reviewed the court file and record of proceedings, and made any necessary amendments.
¶ 5 On August 24, 2010, the State filed a motion to dismiss, and on August 25, 2010, it filed an amended dismissal motion. The State argued that every issue defendant raised could have been raised on direct appeal, and therefore the issues were waived. The State also argued that dismissal would be proper because the petition failed to "clearly set forth the respects" in which his constitutional rights were violated, as required by section 122-2 of the Act (725 ILCS 5/122-2 (West 2008)). The State further requested dismissal based on defendant's failure to attach to his petition affidavits, records, or other evidence supporting his allegations, as required by section 122-2 of the Act.
¶ 6 On August 31, 2010, the trial court conducted a hearing on defendant's amended post-conviction petition and the State's dismissal motion. At the hearing, post-conviction counsel informed the trial court that he had spoken with defendant a couple of times and had written communication with him. Counsel further informed the trial court that he had reviewed defendant's post-conviction petition and discussed with defendant the petition and changes to the petition. Following argument of the parties, the trial court granted the State's motion to dismiss. In doing so, the trial court found that, despite the lapse of time between the event and the indictment, the State did not violate the statute of limitations and the lapse of time did not constitute a violation of defendant's rights. With respect to the second issue, the trial court found it waived because defendant could have raised the issue on direct appeal. The trial court found that the third issue had no constitutional merit. With respect to the fourth issue, the trial court indicated that it followed the supreme court's rules concerning discovery. In granting the State's motion to dismiss, the trial court concluded that defendant failed to raise any issue that amounted to a constitutional violation of his rights and that he had waived many of the issues, which could have been raised on direct appeal. Defendant filed a timely notice of appeal.
¶ 7 Defendant argues that his counsel provided unreasonable assistance by failing to file a proper certificate under Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984) and by failing to make necessary amendments to the petition or provide supporting affidavits. The State first argues that we lack jurisdiction because the petition was not verified by a notarized affidavit. Secondly and alternatively, the State asks that we affirm the dismissal and find that counsel did not provide unreasonable assistance.
¶ 8 Initially, we reject the State's claim that we lack jurisdiction over the appeal because the post-conviction petition was not verified by a notarized affidavit. See People v. Nitz, 2011 IL App (2d) 100031, ¶ 12 (determining that jurisdiction was not based upon a fully executed affidavit).
¶ 9 Turning to the merits, defendant argues that his counsel provided unreasonable assistance by failing to file a proper certificate under Rule 651(c) and by failing to make necessary amendments to the petition or provide supporting affidavits. The State asks that we affirm the dismissal and find that counsel did not provide unreasonable assistance.
¶ 10 The Act provides a method by which persons under criminal sentence can assert that their convictions were the result of a substantial denial of their rights under the United States or the Illinois Constitution or both. 725 ILCS 5/122-1(a)(1) (West 2008); People v. Ligon, 239 Ill. 2d 94, 103 (2010) (citing People v. Petrenko, 237 Ill. 2d 490, 495-96 (2010)). A post-conviction proceeding is a collateral attack on the prior conviction or sentence that does not relitigate a defendant's innocence or guilt. Ligon, 239 Ill. 2d at 103 (citing People v. Evans, 186 Ill. 2d 83, 89 (1999)).
¶ 11 Proceedings under the Act are commenced by the filing of a petition in the circuit court in which the original proceeding took place. People v. Hansen, 2011 IL App (2d) 081226, ¶ 18 (citing People v. Jones, 211 Ill. 2d 140, 144 (2004)). A post-conviction proceeding that does not involve the death penalty consists of three stages. At the first stage, the defendant files a petition and the trial court has 90 days in which it may review the petition without the input of any party and summarily dismiss it if the court finds it frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2008); Hansen, 2011 IL App (2d) 081226, ¶ 18 (citing Jones, 211 Ill. 2d at 144). To survive summary dismissal, the ...