Appeal from Circuit Court of Livingston County No. 08CF33 Honorable Jennifer H. Bauknecht, Judge Presiding.
JUSTICE POPE delivered the judgment of the court, with opinion. Justice Harris concurred in the judgment and opinion. Presiding Justice Steigmann dissented, with opinion.
¶ 1 In January 2009, a jury convicted defendant D'Arious Bowens of attempt (first degree murder) (720 ILCS 5/8-4, 9-1(a)(1) (West 2008)), aggravated domestic battery (720 ILCS 5/12-3.3 (West 2008)), and two counts of aggravated battery (720 ILCS 5/12-3 (West 2008)). The evidence showed defendant stabbed his girlfriend multiple times in the torso, arms, armpits, wrists, and back. His defense at trial centered upon a lack of evidence to prove he had the intent to kill. In April 2009, the trial court sentenced defendant to 24 years in prison.
¶ 2 Defendant appealed, arguing, in part, that the trial court erred by failing to excuse the trial judge's husband from the jury for cause. This court affirmed. People v. Bowens, 407 Ill.App.3d 1094, 1120, 943 N.E.2d 1249, 1273 (2011) (Pope, J., dissenting).
¶ 3 In May 2012, defendant pro se filed a postconviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-7 (West 2012)), alleging ineffective assistance of trial counsel because his lawyer failed to use a peremptory challenge to excuse the prospective juror who was the trial judge's husband. In August 2012, the trial court dismissed defendant's petition, concluding it was frivolous and patently without merit.
¶ 4 Defendant appeals. We reverse and remand with directions.
¶ 5 I. BACKGROUND
¶ 6 We do not recount the evidence at trial, as we discussed it in our opinion following defendant's direct appeal. Bowens, 407 Ill.App.3d at 1095-96, 943 N.E.2d at 1254-55. Suffice it to say, the evidence of defendant's guilt was overwhelming.
¶ 7 On appeal, defendant argued, inter alia, the trial judge committed reversible error by permitting her husband to serve on the jury, despite defendant's challenge for cause. The majority held defendant's failure to exercise a peremptory challenge to Scott Bauknecht when he had peremptory challenges available amounted to an affirmative acquiescence to Bauknecht's jury service and a waiver of the issue on appeal. Id. at 1100, 943 N.E.2d at 1258. The majority went on to find "[i]n a situation like this, where defense counsel affirmatively acquiesces to actions taken by the trial court, a defendant's only challenge may be presented as a claim for ineffective assistance of counsel on collateral attack." Id. at 1101, 943 N.E.2d at 1258.
¶ 8 Defendant has now mounted a collateral attack, alleging in his pro se postconviction petition his lawyer was ineffective for failing to use a peremptory challenge to remove the trial judge's husband from the jury. Judge Bauknecht summarily dismissed the petition as frivolous and patently without merit. This appeal followed. We now reverse and remand with directions.
¶ 9 II. ANALYSIS
¶ 10 A defendant may proceed under the Act by alleging that "in the proceedings which resulted in his or her conviction[, ] there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both." 725 ILCS 5/122-1(a)(1) (West 2010). "In noncapital cases, the Act establishes a three-stage process for adjudicating a postconviction petition." People v. Andrews, 403 Ill.App.3d 654, 658, 936 N.E.2d 648, 652 (2010).
¶ 11 "At the first stage, 'the trial court, without input from the State, examines the petition only to determine if [it alleges] a constitutional deprivation unrebutted by the record, rendering the petition neither frivolous nor patently without merit.' " (Emphasis in original.) Andrews, 403 Ill.App.3d at 658, 936 N.E.2d at 652 (quoting People v. Phyfiher, 361 Ill.App.3d 881, 883, 838 N.E.2d 181, 184 (2005)). To withstand dismissal at the first stage, the petition need only state the gist of a constitutional claim for relief and have an arguable basis in law or in fact. People v. Hodges, 234 Ill.2d 1, 11-12, 912 N.E.2d 1204, 1209 (2009). "A petition which lacks an arguable basis either in law or in fact is one which is based on an indisputably meritless legal theory or a fanciful factual allegation." Id. at 16, 912 N.E.2d at 1212. Moreover, the "gist" standard is a low threshold that does not require a petitioner to set forth the constitutional claim in its entirety but, instead, requires only a ...