Rehearing denied January 21, 2014.
The dismissal of defendant’s pro se postconviction petition alleging that his trial counsel was ineffective in failing to use an available peremptory challenge to excuse a prospective juror who was the trial judge’s husband was reversed and the cause was remanded for a second-stage hearing, since defendant raised the gist of a constitutional claim that had an arguable basis in fact and law and should not have been dismissed at the first stage; furthermore, the Chief Judge of the Eleventh Judicial Circuit was directed to assign the case to a judge other than the trial judge and to appoint counsel for defendant, because a judge should disqualify herself in a proceeding in which the judge’s impartiality might reasonably be questioned.
Appeal from the Circuit Court of Livingston County, No. 08-CF-33; the Hon. Jennifer H. Bauknecht, Judge, presiding.
Michael J. Pelletier, Karen Munoz, and Colleen Morgan, all of State Appellate Defender's Office, of Springfield, for appellant.
Seth Uphoff, State's Attorney, of Pontiac (Patrick Delfino, Robert J. Biderman, and Anastacia R. Brooks, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Panel 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 ...