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People v. Kane

Court of Appeals of Illinois, Second District

December 5, 2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
TIMOTHY D. KANE, Defendant-Appellant

Page 738

Appeal from the Circuit Court of Lake County. No. 05-CF-2260. Honorable Victoria A. Rossetti, Judge, Presiding.

SYLLABUS

The appellate court affirmed the dismissal of defendant's petition under section 2-1401 of the Code of Civil Procedure and his postconviction petition alleging that the State used " false perjured testimony" at his sentencing hearing and that his claim that his counsel's failure to investigate the matter deprived him of effective assistance of counsel, since defendant stipulated to the use of the testimony, he did not present any evidence controverting the testimony, the trial court exercised its discretion in determining whether to appoint an attorney to represent defendant as to his claims, and the issues raised in the postconviction petition had been raised and adjudicated in his direct appeal and were res judicata and " frivolous or patently without merit."

Alan D. Goldberg and Bryon M. Reina, both of State Appellate Defender's Office, of Chicago, for appellant.

Michael G. Nerheim, State's Attorney, of Waukegan (Lawrence M. Bauer and David A. Bernhard, both of State's Attorneys Appellate Prosecutor's office, of counsel), for the People.

JUSTICE McLAREN delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Hudson concurred in the judgment and opinion.

OPINION

Page 739

McLAREN, JUSTICE.

[¶1] Defendant, Timothy D. Kane, appeals from the trial court's orders dismissing his amended petition for relief from judgment, which was brought pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)), and his petition for postconviction relief, brought pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq . (West 2010)). We affirm.

[¶2] I. BACKGROUND

[¶3] After entering an open plea of guilty to one charge of escape (720 ILCS 5/31-6(c) (West 2004)), defendant was sentenced to a term of 20 years in prison. Following his sentencing, defendant filed motions to reconsider his sentence, for new counsel, and to withdraw his guilty plea. He also filed a pro se amended motion, dated November 19, 2007, to withdraw his guilty plea and vacate his sentence, in which he alleged that he had received ineffective assistance of counsel.

[¶4] Central to defendant's postjudgment filings was a transcript of the grand jury testimony of Lake County sheriff's deputy Raymond Gilbert. The transcript was one of several grand jury transcripts the State presented in aggravation at sentencing, and defendant had stipulated that, if called at trial, the officers would have testified to the information contained in the transcripts. Before the grand jury, Gilbert had testified that defendant resisted as Gilbert and Deputy Paavilainen attempted to arrest him. When asked whether defendant " picked you up and threw you on the ground," Gilbert answered, " Yes." He also testified that defendant placed his hand on Paavilainen's holster and touched the gun's handle. Both Gilbert and Paavilainen sustained injuries. Defendant argued that Gilbert's testimony was not supported by his police report and that the State misrepresented the evidence, because defendant had not picked up Gilbert or thrown him.

Page 740

[¶5] After a hearing on December 10, 2007, the trial court denied all of defendant's postjudgment motions, and defendant appealed. This court remanded the cause for compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006). People v. Kane, 381 Ill.App.3d 1150, 966 N.E.2d 610, 359 Ill.Dec. 289 (2008) (unpublished order under Supreme Court Rule 23).

[¶6] On August 15, 2008, defendant filed a motion to withdraw his guilty plea and a supplemental motion to reconsider his sentence. As in his original motion to reconsider, defendant alleged, among other things, that the State " embellished officer testimony in the sentencing hearing" in its use of Gilbert's grand jury testimony. After a hearing, the trial ...


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