Appeal from the Circuit Court of Lake County. No. 05-CF-3717 Honorable George Bridges, Judge, Presiding.
The opinion of the court was delivered by: Justice Burke
JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Hutchinson and Zenoff concurred in the judgment and opinion.
¶ 1 Defendant, Hoke L. Turner, filed a pro se post-conviction petition alleging that his counsel was ineffective at his trial on multiple counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2006)) and criminal sexual assault (720 ILCS 5/12-13(4) (West 2006)) of a young male victim. Defendant argued, inter alia, that trial counsel was ineffective for not attempting to show that the abuse allegations had been concocted by the boy's mother in retaliation for her failed romantic relationship with defendant. The petition advanced to the second stage of post-conviction proceedings, where the court granted the State's motion to dismiss. The court held that, even if defendant's allegation of the mother's bias were true, trial counsel's failure to present evidence of it was a matter of trial strategy. The court concluded that the omitted evidence could have prejudiced defendant, as the jury might have viewed him as "immoral" because he was married when the alleged affair took place.
¶ 2 Defendant appeals the dismissal, arguing that he is entitled to an evidentiary hearing on the petition because he made a substantial showing of a denial of his right to effective assistance of counsel at trial.*fn1 The State argues for the first time that the petition was not verified by affidavit as required by section 122-1(b) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(b) (West 2010)) and that therefore the dismissal should be affirmed. Defendant responds that, by failing to challenge the affidavit sooner, the State has forfeited the issue. We agree with defendant that the State has forfeited the issue.
¶ 3 The State alternatively argues that defendant has forfeited his claim of ineffective assistance of trial counsel for failing to raise it in his petition. A review of the petition shows that the State's argument lacks merit. Nevertheless, we hold that the trial court did not err in dismissing the petition on the ground that counsel's omitting the evidence of defendant's romantic relationship with the victim's mother was a matter of trial strategy. We affirm.
¶ 5 In case No. 05-CF-3717, defendant was charged with three counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2006)) of Nicholas N., a teenager who was a member of defendant's church group. While the charges were pending, Nicholas alleged additional sexual conduct, and the State filed case No. 06-CF-4064, in which defendant was charged with three counts of criminal sexual assault (720 ILCS 5/12-13(4) (West 2006)). The six charges were tried before one jury.
¶ 6 The trial court entered a directed verdict of not guilty on one count of criminal sexual assault, but the jury found defendant guilty of the five remaining charges. The trial court sentenced defendant to two consecutive 10-year prison terms for criminal sexual assault and three concurrent 5-year prison terms for aggravated criminal sexual abuse.
¶ 7 On direct appeal, defendant argued that (1) the jury should not have heard Nicholas testify about certain uncharged sexual conduct with defendant; (2) the jury should not have heard Jamal T., defendant's stepson, testify about certain details of his sexual encounter with defendant; (3) the aggravated criminal sexual abuse charges and the criminal sexual assault charges should have been tried in separate proceedings; and (4) the jury should have been instructed on the consequences of the directed verdict. Defendant ascribed the alleged errors variously to the trial court, trial counsel, and the prosecutor.
¶ 8 We concluded that the testimony about the uncharged sexual conduct and the joinder of the charges were not reversible errors. We affirmed the aggravated criminal sexual abuse convictions entered in case No. 05-CF-3717. However, we concluded that the court's failure to instruct the jury regarding the directed verdict required a new trial on the two remaining counts of criminal sexual assault that had been brought forth in case No. 06-CF-4064. People v. Turner, Nos. 2-07-0101 & 2-07-0102 cons. (2008) (unpublished order under Supreme Court Rule 23). Rather than retrying defendant, the State dismissed the two counts of criminal sexual assault.
¶ 9 On October 2, 2009, defendant filed a pro se post-conviction petition in which he alleged that trial counsel was ineffective for not attempting to establish that Nicholas's allegations had been concocted by the boy's mother, Janet, in retaliation for her failed romantic relationship with defendant. Specifically, defendant alleged that trial counsel failed to call a witness, Danny Myers, who saw sexual activity between defendant and Janet. Counsel also allegedly failed to introduce evidence of a meeting where defendant, defendant's spouse, and defendant's pastor discussed the threat of false allegations. Counsel also allegedly possessed recordings of conversations "that defendant had with [Janet] concerning their relationship and with [Nicholas], stating [Nicholas] had never suffered from the defendant." Defendant further alleged that trial counsel was ineffective for failing to introduce evidence of a residential lease that was relevant to the dates of the alleged offenses, refusing to allow defendant to testify on his behalf, and failing to request a change of venue. Defendant also alleged ineffectiveness of appellate counsel and prosecutorial misconduct.
¶ 10 Attached to the petition was a document called "Post-Conviction Petition Affidavit." Citing section 1-109 of the Code of Civil Procedure (Code) (735 ILCS 5/1-109 (West 2010)), defendant stated that the contents of the petition were true to the best of his knowledge. The "affidavit" was signed but not notarized.
¶ 11 On December 28, 2009, the trial court advanced the petition to the second stage of post-conviction review, and counsel was appointed to represent defendant. On April 6, 2010, defendant amended his pro se petition. To the amended petition, defendant attached another affidavit that was signed but not notarized. The court allowed defendant to discharge his attorney and proceed pro se.
¶ 12 On April 28, 2010, the State moved to dismiss the petition on the grounds that (1) defendant's allegation that trial counsel was ineffective for convincing him not to testify was "res judicata" and unsupported, (2) the other claims of ineffective assistance of trial counsel were "res judicata," (3) the claim of ineffective assistance of appellate counsel lacked merit, and (4) the claim of malicious prosecution was "res judicata" and should have been presented on direct appeal.
¶ 13 On July 30, 2010, the trial court dismissed the petition with prejudice. In citing the grounds for dismissal, the court stated that, even if the allegation about Janet's bias against defendant were true, trial counsel's failure to present the evidence was a matter of trial strategy. The court concluded that the jury might have viewed defendant as "immoral" because he was married when the alleged affair with Janet took place. Defendant's timely appeal from the dismissal of his pro se post-conviction petition followed.
¶ 15 Defendant appeals the dismissal of his pro se post-conviction petition at the second stage of post-conviction proceedings. First, the parties dispute the consequence of defendant's failure to notarize the affidavit he submitted with the petition. The State argues for the first time that defendant's noncompliance with the affidavit requirement of the Act supports the dismissal. Defendant responds that, by failing to raise the affidavit issue in its motion to dismiss the petition, the State has forfeited any challenge to the defective document. We agree with defendant that the State has forfeited the issue.
¶ 16 Second, the parties dispute whether defendant is entitled to a reversal of the dismissal and a remand for an evidentiary hearing on his petition. Defendant argues that he has made a substantial showing that he was denied his right to effective assistance of counsel at trial. The State responds that defendant has forfeited his claim of ineffective assistance of trial counsel, because he did not raise it on appeal or properly in the petition. We conclude that defendant has not forfeited the issue but that the petition was properly dismissed because defendant failed to make a substantial showing of a denial of his right to effective assistance of counsel.
¶ 17 A defendant may initiate proceedings under the Act by alleging that "in the proceedings which resulted in his or her conviction[,] there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both" (725 ILCS 5/122-1(a)(1) (West 2010)). Section 122-1(b) of the Act provides that "[t]he proceeding shall be commenced by filing with the clerk of the court in which the conviction took place a petition (together with a copy thereof) verified by affidavit." (Emphasis added.) 725 ILCS 5/122-1(b) (West 2010). Defendant submitted an affidavit that was signed but not notarized.
¶ 18 In non-capital cases, the Act establishes a three-stage process for adjudicating a post-conviction petition (725 ILCS 5/122-1 et seq. (West 2010)). People v. Jones, 213 Ill. 2d 498, 503 (2004). At the first stage, "the trial court, without input from the State, examines the petition only to determine if [it alleges] a constitutional deprivation unrebutted by the record, rendering the petition neither frivolous nor patently without merit." (Emphasis omitted.) People v. Phyfiher, 361 Ill. App. 3d 881, 883 (2005). Section 122-2.1 of the Act directs that, if the trial court determines that the petition is frivolous or patently without merit, it shall dismiss it in a written order. 725 ILCS 5/122-2.1(a)(2) (West 2010); People v. Torres, 228 Ill. 2d 382, 394 (2008).
¶ 19 If a petition is not dismissed at the first stage, it proceeds to the second stage, at which point section 122-4 of the Act provides for the appointment of counsel for an indigent defendant (725 ILCS 5/122-4 (West 2010)), which happened in this case. At the second stage, the State has the option to either answer or move to dismiss the petition. 725 ILCS 5/122-5 (West 2010). The trial court then determines whether the petition alleges a "substantial showing of a constitutional violation." Phyfiher, 361 Ill. App. 3d at 883. Here, the State moved to dismiss the petition, but on grounds other than the sufficiency of defendant's affidavit.
¶ 20 If the allegations in the petition, supported by the record and accompanying affidavits, demonstrate a substantial violation of a constitutional right, the petition proceeds to the third stage, at which point the court conducts an evidentiary hearing. Phyfiher, 361 Ill. App. 3d at 883-84. A defendant is not entitled to an evidentiary hearing as a matter of right (People v. Makiel, 358 Ill. App. 3d 102, 105 (2005)), but rather ...