Appeal from the Circuit Court of Cook County. No. 04 CR 28617 Honorable Joseph G. Kazmierski, Jr., Judge Presiding.
The opinion of the court was delivered by: Justice Garcia
JUSTICE GARCIA delivered the judgment of the court, with opinion.
Justice Palmer specially concurred, with opinion.
Justice Gordon dissented, with opinion.
¶ 1 Defendant Brandon Cole appeals from the first-stage summary dismissal of his pro se post-conviction petition. Before this court, the defendant contends that appellate counsel on direct appeal was ineffective for failing to raise two issues, which he set forth in his post-conviction petition. The State responds that the defendant's post-conviction petition makes no allegations against appellate counsel's performance on direct appeal, which means the precise issues raised in this appeal were never ruled upon by the circuit court and therefore are not properly before this court. The State argues that in any event each claim is affirmatively rebutted by the record. We agree with each of the State's contentions and affirm.
¶ 3 A jury convicted defendant Brandon Cole in July 2007 of two counts of attempted first degree murder in the shootings of his friend, Zachary Parson, and Parson's friend, Tiffany Space, as they were about to enter the front door of Parson's home. The trial court sentenced the defendant to concurrent terms of 20 years' imprisonment. On direct appeal, the defendant argued that his trial counsel rendered ineffective assistance on three grounds: (1) failure to file a motion to quash arrest and suppress evidence premised on the lack of probable cause for his arrest; (2) failure to object to leading questions of Parson and to a police officer's testimony; and (3) failure to object to "prejudicial and baseless" closing arguments by the prosecutor, including a comment that Parson's testimony was "credible." The defendant also argued that the evidence was insufficient to prove him guilty beyond a reasonable doubt because Parson's testimony lacked sufficient credibility. We rejected each of the defendant's arguments and affirmed. People v. Cole, No. 1-08-0761 (2010) (unpublished order under Supreme Court Rule 23). The State, however, argued that the defendant had to be resentenced because Illinois law mandated consecutive sentences. We agreed and remanded for a new sentencing hearing. Id. at 19-21.
¶ 4 On May 7, 2010, while resentencing was pending, the defendant filed the instant pro se petition for relief under the Illinois Post-Conviction Hearing Act (the Act). 725 ILCS 5/122-1 et seq. (West 2010). The defendant alleged, inter alia, that the trial court violated Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) by failing to "properly question the venire" regarding the principles underlying the trial of the defendant and that the prosecutor engaged in misconduct during closing argument when he injected his personal belief by characterizing Parson as "a credible witness," each of which the defendant alleged violated his right to due process. It is undisputed that the defendant's post-conviction petition contained no reference to appellate counsel's performance on direct appeal. The petition did, however, have appended a copy of the voir dire transcript.
¶ 5 On July 19, 2010, the circuit court summarily dismissed the defendant's petition as frivolous and patently without merit. The court determined that both claims could have been raised on direct appeal because they were based on the trial record. The court ruled that in any event, the claims were without merit because they were rebutted by the record of the trial proceedings. The court found that the jury was asked about each of the four principles set forth in Rule 431(b) during voir dire. The court also questioned whether a purported violation of Rule 431(b) gives rise to a constitutional claim under the Act. Regarding the allegedly improper comments by the State in its closing, the court found the statements did not inject the personal opinion of the prosecutor but were properly based on the evidence.
¶ 6 This timely appeal followed.
¶ 8 The Act provides post-conviction relief when a conviction arises from a substantial violation of a constitutional right. 725 ILCS 5/122-1 (West 2010). A post-conviction proceeding is a collateral attack on the conviction, not an appeal of the underlying judgment. People v. Coleman, 206 Ill. 2d 261, 277 (2002). A defendant bears the burden of showing that he qualifies for relief under the Act by demonstrating a violation of a constitutional right. 725 ILCS 5/122-1(a)(1) (West 2010). A post-conviction petition may be summarily dismissed within 90 days of its filing if "the court determines the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2010). A frivolous or patently without merit petition is one that "has no arguable basis either in law or in fact." People v. Hodges, 234 Ill. 2d 1, 12 (2009). We review summary dismissal of a post-conviction petition de novo. Id. at 9.
¶ 9 The defendant contends his petition presented the "gist" of two constitutional claims based on issues appellate counsel failed to raise on direct appeal. First, he claims the trial court failed to strictly abide by Rule 431(b) in the course of questioning prospective jurors. The defendant acknowledges that during the course of jury selection, the trial court questioned the prospective jurors on "the following fundamental principles of our legal system," which preceded its discussion on the topics covered by Rule 431(b). He contends, however, that the trial court's inquiries missed the mark set by Rule 431(b). Second, he claims prosecutorial misconduct occurred during the State's closing argument when it commented on the "credibility" of a prosecution witness. The defendant contends appellate counsel's failure to raise these issues on direct appeal rendered his assistance constitutionally deficient.
¶ 10 The State responds that neither purported trial error implicates the defendant's constitutional rights, which is a prerequisite to state a claim under the Act and which means each has no arguable basis in law. The State asserts that couching the asserted claims as ineffective assistance of appellate counsel does not transform the claims into constitutional ones, even if the underlying errors occurred. The State argues that no Illinois published decision, after our supreme court's decision in People v. Thompson, 238 Ill. 2d 598 (2010), holds that a Rule 431(b) violation implicates the constitutional rights of a defendant. The State also argues the purported prosecutorial misconduct does not constitute a constitutional claim where the defendant does not allege that the comments materially contributed to his convictions, which the State contends is factually foreclosed by the substantial evidence incriminating the defendant. The State further contends that both claims are refuted by the record, which precludes either from having an arguable basis in fact. Ultimately, the State contends the defendant is precluded from raising any issue of appellate counsel's ineffectiveness in this post-conviction appeal because the defendant made no such allegations in his post-conviction petition. The post-conviction petition did challenge trial counsel's performance, but no separate issue of ineffectiveness of trial counsel is raised in his appellate brief.
¶ 11 The defendant replies that a liberal construction of his petition, which is mandated by Illinois case law (Hodges, 234 Ill. 2d at 21), gives rise to an "implicit claim" of ineffective assistance of appellate counsel. The defendant asserts: "A petitioner who raises a trial error in a post-conviction petition, asserting the claim has merit, also necessarily alleges the ineffectiveness of the appellate attorney who was to blame for failing to raise and preserve the claim on direct appeal." Notably, the defendant does not direct our attention to supporting authority for the proposition that logic alone permits a claim to be raised on appeal that was never expressly ruled upon by the circuit court.
¶ 12 In fact, we find no difference between the defendant's argument and the appellate strategy expressly rejected by the Illinois Supreme Court in the context of an appeal from the summary dismissal of a post-conviction petition:
"Stated bluntly, the typical pro se litigant will draft an inartful pleading which does not survive scrutiny under the 'frivolity/patently without merit' standard of section 122-2.1, and it is only during the appellate process, when the discerning eyes of an attorney are reviewing the record, that the more complex errors that a non-attorney cannot glean are discovered. The appellate attorney, not wishing to be remiss in his or her duty, then adds the newly discovered error to the appeal despite the fact that the claim was never considered by the trial court in the course of its ruling. ***[T]he attorney is zealously guarding the client's rights and is attempting to conserve judicial resources by raising the claim expeditiously at the first available chance. These goals are laudable, but they nonetheless conflict with the nature of appellate review and the strictures of the Act." People v. Jones, 213 Ill. 2d 498, 504(2004).
¶ 13 In Jones, the supreme court made clear that claims not raised in the defendant's post-conviction petition may not be raised for the first time on appeal from the circuit court's dismissal of that petition. In other words, based on the context of this case, claims of ineffective assistance of appellate counsel cannot be inferred by post-conviction appellate counsel simply because issues of trial error were not raised on direct appeal. Jones, 213 Ill. 2d at 504. We read Jones to hold that "implicit" claims in the defendant's ...