Appeal from the Circuit Court of Cook County. No. 04 CR 13410 Honorable John Joseph Hynes, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Robert E. Gordon
PRESIDING JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion.
Justices Garcia and Palmer concurred in the judgment and opinion.
¶ 1 Defendant John Schlosser appeals an order of the circuit court of Cook County dismissing his post-conviction petition under stage two. Following a bench trial, defendant was convicted of involuntary manslaughter, aggravated battery, aggravated battery of a senior citizen, and two counts of home invasion. Defendant was subsequently sentenced to 22 years in the Illinois Department of Corrections. We vacated his convictions for aggravated battery, involuntary manslaughter and one count of home invasion, and affirmed the remaining count of home invasion and aggravated battery of a senior citizen. The sentence was left unchanged. People v. Schlosser, No. 1-06-1832 (2007) (unpublished order under Supreme Court Rule 23).
¶ 2 Defendant then filed a pro se petition for post-conviction relief, arguing that he had not been proven guilty beyond a reasonable doubt and that his sentence was unfair. Defendant's post-conviction petition proceeded to a second-stage review where the circuit court appointed counsel for defendant. Counsel filed a certificate under Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984), but did not amend defendant's pro se petition. The post-conviction petition was dismissed because defendant's claims were "barred by the doctrine of waiver" and "not legally sufficient under the [Post-Conviction Hearing] Act as they [were] entirely conclusory." People v. Schlosser, No. 1-09-2523 (2011) (unpublished order under Supreme Court Rule 23). This court affirmed the circuit court's order, but granted defendant's petition for rehearing.*fn1 For the following reasons, we reverse and remand.
¶ 4 At trial, Debra Pasciak testified that she, defendant, and two others designed a plan to retrieve items from dumpsters in order to sell and exchange them for money to buy crack cocaine. After purchasing and smoking the crack cocaine, they attempted to retrieve more items from dumpsters to exchange for money to buy more crack cocaine. In this effort, Pasciak testified, Louise Howes Lusk, another member of the group, informed them that drugs would be delivered to a certain location. The group went to this location to wait, but later noticed that Lusk had left. Pasciak testified that defendant became angry, believing that Lusk had taken the money that was to be used for the purchase of the drugs. Pasciak testified that defendant drove to Lusk's home, where he pounded on the door and subsequently pushed it open. Pasciak heard a scuffle, and heard Lusk and her 80-year-old father, Fred Howes (victim), tell defendant to leave their home. After hearing more noise, Pasciak testified, defendant left the house and told her that he "smacked them."
¶ 5 Lusk testified to substantially the same events and further testified that after she returned home she went upstairs. She then heard a loud pounding followed by yelling. Lusk testified that when she went downstairs, she observed defendant and the victim with their hands on each other. Lusk attempted to separate the victim from defendant, and when they were eventually separated, the victim went to call 911. Lusk testified that defendant attempted to prevent the victim from making a call and another scuffle ensued. Lusk then observed defendant strike the victim with his fist in the head, causing the victim to fall to the floor. Lusk further testified defendant then struck her in the back of the head with his fist and left. The victim refused medical assistance and did not press charges.
¶ 6 Defendant testified that, when he approached Lusk's home, the victim opened the door about a foot. Defendant introduced himself and said he was a friend of Lusk. Defendant then told the victim he was there because Lusk had stolen his money, and an argument between the two ensued. Defendant further testified that when Lusk tried to separate them, he threw a "wild punch" that struck the victim on the left side of the face, and he subsequently struck Lusk on the back of the head when she tried to help her father.
¶ 7 Oak Lawn Police Sergeant Ross Finnelly testified that he interviewed defendant the day after the incident. Finnelly testified defendant told him that he went to the Lusk residence because Lusk owed him money. Defendant first told Finnelly that he was invited into the house, and that when he entered the home, he began "raging" and yelling. Defendant further claimed that during this time the victim picked up a chair, causing defendant to feel threatened. Finnelly testified he informed defendant that there were "some inconsistencies" in his statement "based on the police's investigation." Defendant then informed Finnelly that he was not invited into the home, but rather the door was open wide enough for him to enter, and that the victim did not pick up a chair, nor did defendant feel threatened. Finnelly testified he again told defendant there were "some inconsistencies," and defendant then admitted that he pushed his way into the home.
¶ 8 The day after the incident, Lusk testified that the victim informed her he did not feel well. The victim was taken to a hospital, and the parties stipulated that surgery was performed to relieve intercranial bleeding caused by a subdural hematoma to the head. The victim died nearly two months later. The medical examiner testified that the victim's death was caused by pneumonia, which occurred after being hospitalized for the surgery. The medical examiner also opined that the hematoma was caused by blunt trauma consistent with a punch to the head.
¶ 9 On direct appeal, defendant claimed that the convictions for aggravated battery and involuntary manslaughter had to be vacated because they were based on one physical act. Defendant further claimed that one of the home invasion convictions had to be vacated because there was only a single entry. Finally, defendant argued that his conviction for aggravated battery of a senior citizen had to be vacated because it was a lesser-included offense of home invasion. As noted, we vacated the convictions for aggravated battery, involuntary manslaughter, and one count of home invasion. We affirmed the remaining convictions for one count of home invasion and aggravated battery of a senior citizen, and the sentence was left unchanged.
¶ 10 Defendant then filed this post-conviction petition. Defendant alleges that the evidence at trial was insufficient to prove his guilt beyond a reasonable doubt of home invasion and aggravated battery of a senior citizen and that his sentencing hearing was unfair. The trial court appointed the office of the public defender to represent defendant. Counsel filed a Rule 651(c) certificate stating that he communicated with defendant, that he examined the trial transcripts, and that he did not amend the petition because it adequately presented defendant's claims. Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984). The State filed a motion to dismiss, which the trial court granted, stating that defendant's claims were "barred by the doctrine of waiver" and "not legally sufficient under the Act as they are entirely conclusory." On appeal, defendant claims post-conviction counsel rendered ineffective assistance and violated Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984) when ...