Appeal from the Circuit Court of Cook County. No. 92 CR 14981 Honorable Noreen Valeria-Love, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Salone
PRESIDING JUSTICE SALONE delivered the judgment of the court, with opinion. Justice Steele concurred in the judgment and opinion.
Justice Murphy specially concurred in the judgment, with opinion.
¶ 1 Petitioner Earl Kelly appeals from the dismissal of his petition for post-conviction relief without an evidentiary hearing. For the reasons set forth below, we reverse the judgment of the circuit court and remand for further second-stage proceedings pursuant to the Post-Conviction Hearing Act. 725 ILCS 5/122-1 et seq. (West 2010).
¶ 3 Petitioner was arrested at about 2:20 a.m. on June 11, 1992, after Chicago police heard gunshots, drove in the direction of the gunshots, and saw petitioner running across a street and into a park. The officers turned on their squad car's siren and various lights, including spotlights, and drove over the curb and into the park. As petitioner ran, the officers saw him throw a brown paper bag and then a shiny object which they believed was a handgun. Petitioner stopped running, and the officers stopped their car. One of the officers handcuffed petitioner, and the other recovered the bag and a .25-caliber handgun with two live rounds in the magazine. The bag contained a scale and 12 packets of clumped white powder in chunks, which later tested positive for cocaine. The total weight of the packets was 95.1 grams. A custodial search of petitioner at the police station revealed an additional 33 packets of a white, rock-like substance and cash.
¶ 4 On August 9, 1995, following a jury trial, petitioner was found guilty of (1) possession of a controlled substance with intent to deliver and (2) armed violence. Upon motion of the State, Judge Francis Golniewicz sentenced petitioner to a term of natural life in prison pursuant to the Habitual Criminal Act. 720 ILCS 5/33B-1 et seq. (West 1992). On appeal, the appellate court vacated petitioner's conviction and sentence for unlawful possession of a controlled substance with intent to deliver and affirmed the conviction and sentence for armed violence. People v. Kelly, No. 1-95-3835 (1997) (unpublished order under Supreme Court Rule 23). Leave to appeal to the Illinois Supreme Court was denied on February 4, 1998. People v. Kelly, 176 Ill. 2d 584 (1998).
¶ 5 Post-conviction Proceedings
¶ 6 On July 30, 1998, petitioner filed a pro se petition for post-conviction relief, arguing (1) ineffective assistance of trial counsel and (2) the Habitual Criminal Act was unconstitutional. On September 17, 1998, petitioner filed a pro se addendum/amendment to his petition, alleging he was denied his right to counsel of his choice when Judge Golniewicz refused to allow substitute private counsel to file his appearance on the day of trial.
¶ 7 On January 29, 1999, the circuit court appointed the public defender to represent petitioner on the petition.
¶ 8 Less than a month later, on February 11, 1999, petitioner filed a pro se motion for leave to file an amended or second post-conviction petition, along with an amended petition. The trial court never ruled on the motion for leave to file. The petition itself advanced a number of claims, including that petitioner was denied his right to counsel of his choice.
¶ 9 More than two years later, on June 25, 2001, appointed post-conviction counsel filed a three-page "Partial Supplemental Post-Conviction Petition" arguing that petitioner's natural life sentence violated the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000). On June 9, 2003, the State filed a motion to dismiss this claim, citing People v. De La Paz, 204 Ill. 2d 426 (2003), which held that Apprendi did not apply retroactively to criminal cases where direct appeals were exhausted before Apprendi was decided. Here, the Illinois Supreme Court denied petitioner's petition for leave to appeal on February 4, 1998, long before Apprendi was decided on June 26, 2000.
¶ 10 In summer 2003, the public defender apparently was granted leave to withdraw from the case, and petitioner retained a private attorney to represent him.
¶ 11 In June 2007 petitioner filed a pro se petition for writ of habeas corpus alleging, inter alia, that he was improperly incarcerated because Judge Golniewicz, who presided over his trial, was ineligible to serve as a judge. Attached to the petition were excerpts from a November 15, 2004, decision of the Illinois Courts Commission removing Golniewicz from the bench. That decision concluded, in relevant part:
"Respondent used deception to get elected. He was living in [suburban] Riverside, but used his parents' address [in Chicago] to run for election because he had a much greater chance of winning an election using that address. Respondent actively concealed his true permanent abode."
In re Golnniewicz, No. 02 CC 1, slip op. at 31 (Ill. Ct. Comm'n Nov. 15, 2004).
¶ 12 On September 24, 2007, more than four years after petitioner retained private counsel, petitioner filed a motion for appointment of new counsel, complaining, inter alia, that his private counsel had neither visited him nor "filed any motions or amended petitions on the petitioner's behalf." On the same day, petitioner filed a pro se motion for leave to file a second supplemental post-conviction petition, along with that petition. The court did not rule on the motion for leave to file. The pro se petition alleged, inter alia, that petitioner's trial counsel was ineffective for failing to inform the circuit court that she was not prepared for trial on the date the jury was selected (August 8, 1995). Attached to the petition was an affidavit from petitioner's trial counsel, an assistant public defender, stating that private counsel attempted to appear on petitioner's behalf but needed to request a short continuance prior to the commencement of a jury trial. Petitioner's trial counsel stated further stated that Judge Golniewicz would not allow the private attorney to file his appearance but, rather, insisted that petitioner proceed to trial with the Office of the Public Defender as counsel. Also attached to the petition was a document titled "Affidavit" from attorney Alexander Salerno stating he asked Judge Golniewicz for leave to file his appearance on petitioner's behalf and requested a 30-day continuance to prepare for trial.
Salerno stated the judge refused to allow him to file his appearance unless he agreed to try the case that day, which he could not do. Salerno also stated that petitioner's trial counsel told him she was not ready for trial either and would be ...