Appeal from the Circuit Court of Cook County. No. 96 CR 19441 Honorable Kevin Sheehan, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Quinn
PRESIDING JUSTICE QUINN delivered the judgment of the court, with opinion. Justices Connors and Harris concurred in the judgment and opinion.
¶ 1 Defendant, Kenneith Jones appeals from a judgment entered by the trial court that dismissed his post-conviction petition after a full evidentiary hearing. Jones filed a timely notice of appeal on November 9, 2009, and the appeal was fully briefed on January 4, 2012.
¶ 2 On appeal, defendant argues that: (1) he received an unfair post-conviction hearing because of evidentiary errors committed by the court; (2) he was denied effective assistance of counsel at his criminal trial when his counsel failed to thoroughly investigate and call alibi witnesses and witnesses who could have corroborated statements one Dwight Washington made against his penal interests; (3) his conviction should be reversed because of his claim of innocence; and (4) the State committed a Brady violation (Brady v. Maryland, 373 U.S. 83 (1963)), which now entitles him to a new trial. The post-conviction court held a hearing on the petition where 12 witnesses testified.
After hearing all the testimony, the court denied the post-conviction petition in all respects. This opinion addresses issues raised in defendant's brief after addressing the recent case of People v. Henderson, 2011 IL App (1st) 090923, and its application.
¶ 3 A preliminary review of this case revealed that Jones had fully served the sentence imposed for his conviction of first degree murder and he is no longer in the custody of the Illinois Department of Corrections (IDOC) or under their supervision as a parolee. This court is aware of the recent holding in People v. Henderson, 2011 IL App (1st) 090923, that dismissed Henderson's post-conviction petition on appeal as moot when the appellate court determined that he had fully served his sentence. It reasoned that because the defendant no longer needed the assistance of the Post-Conviction Hearing Act (the Act)(725 ILCS 5/122-1 to 122-8 (West 2008)) to secure his liberty, he immediately lost standing under the Act. We ordered additional briefing to obtain the parties' positions as to whether the holding in Henderson requires the dismissal of this defendant's appeal as moot.
¶ 4 The State responded to the issue forthrightly by stating that it was the position of the State's Attorney's office that the Henderson court's dismissal of defendant's post-conviction petition as moot on appeal was wrong and not grounded in established supreme court precedent. The State's position is that Henderson's release from parole subsequent to his timely filed petition did not eliminate his standing to obtain relief pursuant to the Act and render his petition moot. We disagree with the holding in Henderson for the following reasons.
¶ 5 I. Summary of Illinois's Post-conviction Procedure and Analysis of Henderson's Applicability
¶ 6 In addition to review on direct appeal following a criminal conviction, certain collateral, statutory remedies have been made available under which criminal convictions may be challenged. In Illinois the Act is one such remedy. Under the Act "[a]ny person imprisoned in the penitentiary may institute a proceeding***."725 ILCS 5/122(a) (West 2008). While the entire Act consists of only 11/2 pages of text in the statute books, litigation stemming from the Act has resulted in an incredible number of court decisions since being enacted in 1951. One such area concerns the time limits within which a defendant must file his or her original petition. Under the current statutory framework, a post-conviction petition must be filed by the earliest of the following two dates: (1) six months after the conclusion of any appeal to the United States Supreme Court or six months after the date for filing such appeal if none is filed; or (2) if no direct appeal is filed, three years from the date of conviction. 725 ILCS 5/122-1(c) (West 2008). In any instance, the petitioner may be excused from meeting these filing deadlines if it can be shown that the delay was not due to his or her culpable negligence. 725 ILCS 5/122-1(c) (West 2008). Legal proceedings under the Act have been deemed to be civil in nature. People v. Andretich, 244 Ill. App. 3d 558 (1993). The time periods for filing a timely petition have been held to be statutes of limitations. People v. Allen, 322 Ill. App. 3d 724 (2001) (citing People v. Bates, 124 Ill. 2d 81, 85-86 (1988)). A statutory civil cause of action that is timely filed cannot be declared moot by subsequent events.
¶ 7 Additionally, just as our supreme court has determined that the matter of timeliness of a post-conviction petition should be left for the State to assert ( People v. Boclair, 202 Ill. 2d 89, 102 (2002)), in People v. Hager, 202 Ill. 2d 143 (2002), issued the same day as Boclair, the supreme court reversed the appellate court's sua sponte dismissal of a post-conviction petition as untimely and ordered the appellate court to limit its review on remand to whether or not the petition was "frivolous or patently without merit." People v. Hager, 202 Ill. 2d at 149-50. It would appear from these two decisions that the appellate court should refrain from considering the issue of timeliness , absent a motion to dismiss by the State and a ruling by the trial court. It would follow that the appellate court should not decide issues of mootness of the entire petition absent allowing the petitioner to respond.
¶ 8 Application of the Henderson decision which allowed for appellate court dismissal of a petition merely because the petitioner has served his sentence is troubling for another important reason. Many of these petitions frequently experience delays not found in other categories of cases before they receive final review. For instance, in the instant case, the defendant was sentenced in 1999. Defendant's conviction was affirmed in 2000 on direct appeal after the filing of an Anders brief. People v. Jones, No. 1-99-1235 (Sept. 29, 2000) (unpublished order under Supreme Court Rule 23). In March 2001, defendant filed his post-conviction petition, which was summarily dismissed by the trial court in June 2001. On appeal, this court remanded the case for appointment of counsel and further proceedings in June 2005. People v. Jones, 364 Ill. App. 3d 1 (2005). Two years later, the public defender's office filed a supplemental petition to the pro se petition on Kenneith Jones's behalf. On remand, the trial court held an evidentiary hearing on the petition on various dates from March 19, 2008 to November 4, 2009, when the circuit court denied defendant any relief pursuant to his post-conviction petition. On appeal, it took over two years for this case to be fully briefed and ready for decision.
¶ 9 Both public offices charged with representing the parties in these post-conviction petitions suffer from understaffing and underfunding, which predictably result in severe backlogs. A recent motion for extension of time filed by an assistant State Appellate Defender represented to this court that while her "office has eighty (80) full-time and fourteen (14) part-time assistant defenders working on cases," they are currently experiencing "a backlog of approximately 1043 unbriefed cases." People v. Brown, No. 1-11-2009 (pending appeal; motion for extension of time to file brief for appellant, pages 1-2, paragraph 8, filed February. 24, 2012). The State's Attorney's office's appellate staff has also represented that its office is experiencing "a backlog of over 200 unassigned cases, and an understaffed Criminal Appeals Division *** which is currently down 37 assistant state's attorneys and one paralegal." People v. McKinney, No. 1-10-3696 (pending appeal; motion for an extension of time for the filing of the people's brief, page 2,paragraph 10, filed February 28., 2012).
¶ 10 We hold that the instant post-conviction petition was timely filed and, as such, is not moot. Our decision rests on a foundation of prior Illinois Supreme Court cases where the court has made clear that all that is required is that a petitioner must still be serving any sentence imposed, including any period of mandatory supervised release, at the time of the initial timely filing of his petition. People v. Davis, 39 Ill. 2d 325 (1968); People v. Carrera, 239 Ill. 2d 241 (2010).
¶ 11 Specifically, the Davis court directly addressed this issue, as follows:
"From the outset of the post-conviction hearing the State has asserted that the petition should be dismissed because Davis was not incarcerated at the time the cause was heard. The State relies on the wording of the Post-Conviction Hearing Act which gives 'any person imprisoned in the penitentiary' the right to allege a substantial denial of constitutional rights [citation] and this court's comment that the legislative intent behind this provision was 'to make the remedy available only to persons actually being deprived of their liberty and not to persons who had served their sentences and who might wish to purge their records of past convictions.' [Citation.] In some jurisdictions post-conviction remedies may be utilized to attack unconstitutional convictions regardless of the fact that petitioner has fully served his sentence. [Citations.] Others restrict use of this remedy, usually because of statutory language, to those persons actually imprisoned at the time of hearing. [Citations.] As there are obvious advantages in purging oneself of the stigma and disabilities which attend a criminal conviction, we see no reason to so narrowly construe this remedial statue as to preclude the remedy in every case in which the petition is not filed and the hearing completed before imprisonment ends." People v. Davis, 39 Ill. 2d at 328-29.
¶ 12 It would frustrate justice to shut the door on the one avenue for Illinois prisoners to obtain relief from a criminal conviction on constitutional grounds because the State and Appellate Defender's office delayed, through no fault of their own, the petitioner's case for so long that he eventually serves his entire sentence and is released. The just thing to do would be to address the merits of the petition on appeal, which we will do in the remainder of this opinion.
¶ 13 II. Procedural Background
¶ 14 On July 10, 1996, a 14-year-old girl named Shekena Waltower was shot in the head and killed as she sat outside her home. A bench trial was held and defendant Kenneith Jones was found guilty of first degree murder and sentenced to 25 years in prison. A direct appeal of Jones's conviction followed. This court allowed defense counsel to withdraw as appellate counsel and affirmed defendant's conviction after determining that there were no issues of arguable merit pursuant to Anders v. California, 386 U.S. 738 (1967). People v. Jones, No.1-99-1235 (Sept. 29, 2000) (unpublished order under Supreme Court Rule 23).
¶ 15 On March 27, 2001, defendant filed a pro se petition for post-conviction relief alleging that his trial counsel's representation was constitutionally deficient because counsel had (1) failed to interview certain alibi witnesses; (2) decided not to call certain alibi witnesses that he had been informed of; and (3) ineffectively cross-examined of the State's key witnesses, including a failure to investigate the possibility that another person committed the murder of Shekena Waltower. Defendant supported his pro se petition with six affidavits and an investigative report prepared by the State's Attorney's office. On June 1, 2001 the trial court summarily dismissed defendant's pro se petition on the basis of waiver and res judicata because each of the issues raised in the petition either was raised or could have been raised on direct appeal of his criminal conviction. On appeal from the summary dismissal of the post-conviction petition, this court found that the pro se petition advanced the gist of a constitutional claim. The summary dismissal of the pro se petition was reversed and remanded with directions to the trial court that the petition be considered in accordance with sections 122-4 through 122-6 of the Post-Conviction Hearing Act (725 ILCS 5/122-4 to 122-6 (West 2008)). People v. Jones, No. 1-10-3731 (June 9, 2005) (unpublished order under Supreme Court Rule 23). Two years later, the public defender's office filed a supplemental petition. On October 25, 2007, the original trial judge, Judge Sumner, ordered an evidentiary hearing on whether defendant's trial counsel provided constitutionally ineffective assistance, whether there was sufficient evidence of defendant's actual innocence and whether there was a Brady discovery violation by the State. Brady v. Maryland, 373 U.S. 83, 87 (1963). The hearing was conducted on various dates from March 2008 through November 4, 2009 and was presided over by Judge Kevin Sheehan, who heard the testimony of 12 witnesses; 8 offered by the defense and 4 offered by the State. The court denied the petitioner any relief on November 4, 2009. We are now asked to review the dismissal of the post-conviction petition after appointment of counsel and after a full evidentiary hearing was held on remand.
¶ 17 At approximately 10 p.m. on July 10, 1996, Shekena Waltower was shot in the head in front of her home. She was the innocent victim of a gang dispute between the Cicero Insane Vice Lords and the Four Corner Hustler street gangs. At trial, the State presented evidence that defendant Kenneith Jones and Keith King were both members of the Four Corner Hustlers gang. They entered the territory of the neighboring Cicero Insane Vice Lords gang, pulled out their automatic handguns and fired approximately 20 to 30 shots into a small group of people gathered in front of the home where the victim, Shakena Waltower lived. None of the bullets hit any of the gang members from the Cicero Insane Vice Lords who were in front of Shekena's house. However, Shekena was killed almost instantly when a single bullet went through her head.
¶ 18 During defendant's bench trial, numerous witnesses testified regarding their observations that night. Sonia Easley and her 13-year-old daughter, Pia Easley, lived across the street and a few houses west from the victim, Shekena. Both mother and daughter sat on their porch together. Sonia entered her home to answer a ringing phone. While inside, she heard two shots, followed by a rapid series of shots. From her second-floor apartment window, Sonia observed the defendant pointing his gun in a northeasterly direction with fire coming out of it. She observed him flee the scene on foot. Sonia positively identified defendant Kenneith Jones three hours later in a police lineup as the man she saw firing the gun in the direction of Shekena's house.
¶ 19 Pia Easley, while sitting on her porch, saw two men walking eastbound down the street toward her. She observed both men leave the sidewalk shortly before they reached her house and walk into the middle of the street. Shortly after the two men passed her, they began firing numerous times in the direction of people gathered in front of Shekena's home. After the shooting stopped, Pia ran into the hallway of her home and from there she observed the two men run back in front of her building as they fled the scene. She had never seen these two men before, but was able to identify both the defendant and Keith King in a police lineup three hours later.
¶ 20 The shooting was also witnessed by David Freeman, Derrick Brooks and Antojuan Chew. David and Derrick were Cicero Insane Vice Lord gang members and the intended victims. David Freeman and Antojuan Chew were cousins of the victim, Shekena. As they stood in front of Shekena's house, David, Derrick and Antojuan each noticed two men walking east on Fulton and as they got closer, all three recognized the two men as members of the Four Corner Hustler street gang who lived north on Fulton. Cousins Derrick and Antojuan had attended Spencer Elementary School with the defendant, Kenneith Jones, and David knew both ...