The decision in defendant’s direct appeal from his conviction for first degree murder collaterally estopped him from asserting in his postconviction petition that his trial and appellate counsel were ineffective in failing to argue that the trial court improperly considered the harm to the victim as an aggravating factor at the sentencing hearing, since the appellate court decided in the direct appeal that the reference to the improper aggravating factor at the sentencing hearing was not plain error, and, therefore, defendant’s counsel could not have been ineffective
Rehearing denied May 22, 2013
Appeal from the Circuit Court of Macon County, No. 07-CF-824; the Hon. Katherine M. McCarthy, Judge, presiding.
Michael J. Pelletier, of State Appellate Defender's Office, of Springfield, and Peter A. Carusona and Jay Wiegman, both of State Appellate Defender's Office, of Ottowa, for appellant.
Jack Ahola, State's Attorney, of Decatur (Patrick Delfino, Robert J. Biderman, and Anastacia R. Brooks, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Presiding Justice Steigmann and Justice Knecht concurred in the judgment and opinion.
¶ 1 Defendant, Kyle L. Wright, who is serving a 55-year term of imprisonment for first degree murder (720 ILCS 5/9-1(a)(1) (West 2006)), appeals from the summary dismissal of his postconviction petition. He makes several claims in his petition, but the only claims he pursues in this appeal are those of ineffective assistance of counsel. We conclude that our previous decision, on direct appeal, collaterally estops defendant from making his claims of ineffective assistance. Therefore, we affirm the trial court's judgment.
¶ 2 I. BACKGROUND
¶ 3 In the jury trial, which occurred in March 2008, the evidence tended to show the following. On June 2, 2007, defendant was driving in Decatur, and Ebony Oldham was one of his passengers. Defendant was angry with Robert May for selling him $800 of fake cocaine. May was standing beside Derrick Matthews and Ricky Johnson in the 800 block of West Macon Street. According to Oldham and the other passengers in defendant's car, defendant stopped the car, pulled out a pistol, and fired three rounds through the open front passenger window. One of the bullets hit Matthews in the head, killing him. May and Johnson were uninjured. The other two bullets struck a nearby house.
¶ 4 The jury found defendant guilty of the first degree murder of Matthews. The jury also answered yes to the question of whether the State had proved, beyond a reasonable doubt, that defendant had personally discharged a firearm and thereby had proximately caused the death of Matthews.
¶ 5 The trial court held a sentencing hearing in April 2008. In the sentencing hearing, the State called Emma Matthews, the mother of the murder victim. She testified her deceased son had two daughters, aged four and six, to whom he had been devoted, visiting them every day and taking them to school. He also had been close to his sister. Defendant's sister, his children, and the mother of his children all would miss him greatly, Matthews said.
¶ 6 The State next called James Addison. He testified he lived at 876 West Macon Street and that on June 2, 2007, he was sitting in his living room, the room closest to the street, watching television with a friend, when a bullet flew by him, about an inch from his head, ...