Appeal from Circuit Court of Champaign County No. 07CF2153 Honorable Heidi N. Ladd, Judge Presiding.
The opinion of the court was delivered by: Justice Turner
Carla Bender 4th District Appellate Court, IL
JUSTICE TURNER delivered the judgment of the court, with opinion. Justices Appleton and Harris concurred in the judgment and opinion.
¶ 1 In August 2010, defendant, Mekiel V. Kelley, filed a pro se petition for relief under the Post-Conviction Hearing Act (Post-conviction Act) (725 ILCS 5/art. 122 (West 2010)). In March 2011, appointed counsel filed an amended post-conviction petition. After an evidentiary hearing, the Champaign County circuit court denied defendant's request for post-conviction relief.
¶ 2 Defendant appeals, asserting the trial court erred by (1) requiring defendant to wear shackles during the evidentiary hearing, (2) finding defendant's argument trial counsel was ineffective for failing to file a motion to suppress was barred by the doctrine of res judicata, and (3) finding defendant's claim his trial counsel was ineffective for failing to file a motion to reconsider defendant's sentence was barred by the doctrine of forfeiture. We affirm.
¶ 4 In December 2007, the State charged defendant by information with the Class X felony of unlawful possession with the intent to deliver a controlled substance (720 ILCS 570/401(a)(1)(A) (West Supp. 2007)), namely 15 grams or more but less than 100 grams of a substance containing heroin. On April 29, 2008, the State also charged defendant by information with unlawful possession with the intent to deliver a controlled substance (720 ILCS 570/401(c)(1) (West Supp. 2007)), alleging he possessed 1 gram or more but less than 15 grams of a substance containing heroin, a Class 1 felony. Both counts were based on defendant's alleged actions on December 8, 2007. The heroin that was the basis for the charges was in a hotel room registered to defendant after the police stopped the vehicle in which he was a passenger in the hotel's parking lot. The driver of the vehicle was Fred Walker, who was defendant's co-defendant.
¶ 5 At the April 29, 2008, court proceedings, the State requested the trial court arraign defendant on the second count, dismiss the original count, and then proceed to trial on only the second count. Defendant noted his dissatisfaction with his trial counsel and wanted a continuance to hire new counsel. He also mentioned representing himself at trial. After addressing defendant's motions, the trial court arraigned defendant on the new count, and defendant indicated he wanted a preliminary hearing. Thereafter, defendant stated he did not want to be present at his trial. The court excused defendant and conducted the preliminary hearing. After finding probable cause, the court dismissed the original count and commenced defendant's jury trial on the second count. Defendant was absent from the courtroom for most of his trial.
¶ 6 At the conclusion of defendant's trial, a jury found defendant guilty as charged. Defense counsel filed a posttrial motion, and defendant filed two pro se motions. At a July 2008 joint hearing, the trial court denied defense counsel's posttrial motion, did not address defendant's pro se motions, and sentenced defendant to 24 years' imprisonment. No motion challenging defendant's sentence was filed.
¶ 7 Defendant appealed and argued (1) he was denied his right to counsel of choice, (2) the trial court erred by failing to examine his posttrial ineffective-assistance-of-counsel claims, and (3) he was denied effective assistance of counsel because his trial counsel failed to file a motion to suppress. People v. Kelley, No. 4-08-0570, slip order at 2 (Jan. 6, 2010) (unpublished order under Supreme Court Rule 23). The facts presented at defendant's trial relevant to the issues on his direct appeal are set forth in our order, and thus we do not repeat them here. See Kelley, slip order at 5-9. In our order, this court concluded the following: (1) the trial court did not abuse its discretion in denying defendant's motion to continue to substitute counsel, (2) the trial court's refusal to consider defendant's pro se ineffective-assistance-of-counsel claims was not erroneous, and (3) defendant's ineffective-assistance-of-counsel claim relief should be addressed under the Post-conviction Act. Kelley, slip order at 16, 20, 26.
¶ 8 In August 2010, defendant filed his pro se post-conviction petition, raising nine claims of constitutional error. Two of the claims were ineffective assistance of trial counsel based on counsel's failure to file a motion to suppress and a motion to reconsider defendant's sentence. In November 2010, the trial court moved defendant's petition to the second stage of the post-conviction proceedings and appointed counsel for defendant. In March 2011, appointed counsel filed an amended post-conviction petition, which basically listed defendant's arguments in clearer terms. Appointed counsel also filed a certificate under Illinois Supreme Court Rule 651 (c) (eff. Dec. 1, 1984). That same month, appointed counsel supplemented the amended petition with a notarized affidavit of Walker.
¶ 9 In June 2011, the trial court set defendant's petition for an evidentiary hearing since the State had failed to file a responsive pleading. On July 8, 2011, the court held the evidentiary hearing. At the beginning of the hearing, defendant's counsel requested defendant's shackles be removed so he could more easily assist counsel. The court denied defendant's request. Defendant testified on his own behalf and presented the testimony of Walker, who testified the drugs found in the hotel room belonged to him and not defendant. He also asked the court to take judicial notice of the court file and transcripts in this case and the court file for Walker's case (People v. Walker, No. 07-CF-2152 (Cir. Ct. Champaign Co.)). When defendant testified, defendant's counsel again requested the removal of his shackles, and the court again declined. Defendant testified he requested his trial counsel, Janie Miller-Jones, to file a motion to suppress the heroin found in the hotel room every time they talked, and she refused because she did not think defendant had a valid basis for such a motion. Defendant also testified he requested counsel to file a motion to reconsider his sentence. The State presented the testimony of Miller-Jones. Miller-Jones testified she did not file a motion to suppress because a valid basis for one did not exist. She also stated defendant did not ask her to file a motion to reconsider his sentence. At the conclusion of the hearing, the court took the matter under advisement.
¶ 10 In July 2011, the State filed a motion to reopen the evidence, which the trial court granted. On September 7, 2011, the court heard more evidence related to Walker's testimony. On September 27, 2011, the court filed a written memorandum denying defendant's post-conviction petition. On September 30, 2011, defendant filed a timely notice of appeal in compliance with Illinois Supreme Court Rule 606 (eff. Mar. 20, 2009). See Ill. S. Ct. R. 651(d) (eff. Dec. 1, 1984) (providing the supreme court rules governing criminal appeals apply to appeals in post-conviction proceedings). Accordingly, this court has jurisdiction under Illinois Supreme Court Rule 651(a) (eff. Dec. 1, 1984).
¶ 12 Here, defendant challenges the trial court's denial of his post-conviction petition after an evidentiary hearing. The Post-conviction Act provides a remedy for defendants who have suffered a substantial violation of constitutional rights at trial. People v. Pendleton, 223 Ill. 2d 458, 471, 861 N.E.2d 999, 1007 (2006). In cases not involving the death penalty, the Post-conviction Act sets forth three stages of proceedings. Pendleton, 223 Ill. 2d at 471-72, 861 N.E.2d at 1007.
¶ 13 At the first stage, the trial court independently reviews the defendant's post-conviction petition and determines whether "the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2010). If it finds the petition is frivolous or patently without merit, the court must dismiss the petition. 725 ILCS 5/122-2.1(a)(2) (West 2010). If the court does not dismiss the petition, it proceeds to the second stage, where, if necessary, the court appoints the defendant counsel. Pendleton, 223 Ill. 2d at 472, 861 N.E.2d at 1007. Defense counsel may amend the defendant's petition to ensure his or her contentions are adequately presented. Pendleton, 223 Ill. 2d at 472, 861 N.E.2d at 1007. Also, at the second stage, the State may file a motion to dismiss the defendant's petition or an answer to it. Pendleton, 223 Ill. 2d at 472, 861 N.E.2d at 1008. If the State does not file a motion to dismiss or the ...