Appeal from the Circuit Court of Cook County. No. 98 CR 22730 Honorable Thomas M. Tucker, Judge Presiding.
The opinion of the court was delivered by: Justice Sterba
JUSTICE STERBA delivered the judgment of the court, with opinion.
Presiding Justice Lavin and Justice Fitzgerald Smith concurred in the judgment and opinion.
¶ 1 Defendant Shaun Profit appeals the trial court's dismissal, on motion of the State, of his successive post-conviction petition. On appeal, defendant contends that his appointed post-conviction counsel provided unreasonable assistance under Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984). He argues that counsel attempted but failed to adopt claims that he raised in various pro se pleadings, and failed to make amendments that would have preserved his claims against procedural bars. For the reasons that follow, we affirm.
¶ 3 Following a simultaneous but severed bench trial with his co-defendant, Simione Dunn, defendant was convicted of attempted first degree murder and armed robbery and was sentenced to two consecutive 18-year prison terms. The underlying facts of the case are set forth in our decision on direct appeal and will be repeated here only briefly.
¶ 4 Defendant and co-defendant were convicted primarily based on the testimony of the victim and Katrina Dent, who had negotiated an agreement with the prosecution wherein in exchange for her truthful testimony, she would be allowed to plead guilty to robbery and receive a sentence of probation. At trial, Dent testified that she, defendant, and co-defendant planned to rob the victim at his apartment. Dent saw co-defendant shoot the victim in the back of the head, and then, as she ran outside, saw defendant enter the apartment wearing latex gloves and carrying a gym bag. Later, co-defendant told Dent that "Shaun took care of [her] boy."
¶ 5 The victim testified that even though he did not see defendant, he heard another person enter the apartment after he had been shot the first time. He heard co-defendant say, "Shaun, watch them." The two men searched the apartment and asked several times where the money was. When the victim said he did not have any money, the person named Shaun shot him in the back of the neck, and co-defendant said, "Come on, Shaun, let's go." The victim testified that some money and a cell phone were taken from his apartment.
¶ 6 On direct appeal, defendant challenged the sufficiency of the evidence and contended that the statute authorizing consecutive sentences was unconstitutional under the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000). We affirmed defendant's conviction and sentence. People v. Profit, No. 1-00-0353 (2001) (unpublished order under Supreme Court Rule 23).
¶ 7 In 2002, defendant filed a pro se petition for post-conviction relief, raising claims that his consecutive sentences violated Apprendi and that the State used perjured testimony of an alleged accomplice to obtain his conviction. The petition was summarily dismissed by the trial court as frivolous and patently without merit, and defendant appealed. We granted appellate counsel's motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), and affirmed the dismissal of the petition. People v. Profit, No. 1-02-3154 (2003) (unpublished order under Supreme Court Rule 23).
¶ 8 Later in 2003, defendant filed a pro se pleading titled "Motion to File Second Post-Conviction Petition," along with a document titled "Memorandum of Law / Finding of Facts." In this petition, defendant made allegations that (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court improperly consolidated the evidence in his and his co-defendant's trials, even though the trials had been severed; (3) trial counsel failed to object to the "consolidation" of the evidence; (4) the State knowingly elicited false testimony from Dent; and (5) trial and appellate counsel were ineffective for not raising these issues.
¶ 9 Defendant's successive petition was not addressed by the trial court until 2005. At that time, the trial court docketed the petition and appointed counsel.
¶ 10 In July 2007, defendant filed a pro se pleading titled "Amended Petition." In this petition, defendant alleged that (1) the trial court erroneously held his and co-defendant's severed trials at the same time; (2) the trial court erroneously consolidated the evidence from his and co-defendant's trials; (3) trial counsel was ineffective for failing to object to these actions of the trial court and preserve them for appeal; (4) he was denied due process when he received an enhanced sentence and the enhancement was not indicated on the indictment; and (5) the evidence was insufficient to convict.
¶ 11 In August 2007, the State filed a motion to strike defendant's pro se amended petition, arguing that defendant had no authority to file such a pleading while he was represented by counsel. At the hearing on the motion, post-conviction counsel asked the trial court to defer ruling until he decided whether he would be preparing his own supplemental petition. ...