Appeal from the Circuit Court of McHenry County. No. 05-CF-865. Honorable Joseph P. Condon, Judge, Presiding.
The appellate court upheld the dismissal of defendant's postconviction petition alleging that defense counsel, in a prosecution for aggravated arson, was ineffective in failing to tender an instruction on the lesser included offense of criminal damage to property and in not allowing defendant to make the decision as to whether that instruction should be tendered, since even though the decision is a matter of trial strategy, the decision belongs to defendant, but the affidavit defendant attached to his petition merely stated that he was not given a choice about the instruction, and by not stating that he would have chosen differently and why, he did not establish how he was prejudiced by his counsel.
Karen Munoz and Catherine K. Hart, both of State Appellate Defender's Office, of Springfield, for appellant.
Louis A. Bianchi, State's Attorney, of Woodstock (Lawrence M. Bauer and Jay Paul Hoffmann, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Hutchinson and Hudson concurred in the judgment and opinion.
[¶1] Defendant, Jose J. Rivera, appeals from the dismissal of his petition filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). We affirm.
[¶2] I. BACKGROUND
[¶3] Following a jury trial, defendant was convicted of one count of aggravated arson (720 ILCS 5/20-1.1(a) (West 2004)). Defendant appealed, raising contentions regarding the sufficiency of the evidence and ineffective assistance of counsel, including an argument that counsel failed to tender a jury instruction and verdict forms on the lesser included offense of criminal damage to property (720 ILCS 5/21-1 (West 2004)). This court affirmed his conviction.
See People v. Rivera, 404 Ill.App.3d 1177, 996 N.E.2d 776, 374 Ill.Dec. 1081 (2010) (unpublished order under Supreme Court Rule 23).
[¶4] Defendant then filed a petition under the Act, raising five issues of ineffective assistance of both trial and appellate counsel, including a contention that he received ineffective assistance " when trial counsel chose not to tender a jury instruction on the lesser-included offense of criminal damage to property rather than affording the Defendant the right to make that decision." The State filed a motion to dismiss, and the trial court heard argument. In granting the motion to dismiss, the trial court addressed only the issue of the lesser-included-offense instruction, finding that trial counsel " was perfectly justified in proceeding as he did on the whole ball of wax rather than tender a lesser included [offense instruction]." This appeal followed.
[¶5] II. ANALYSIS
[¶6] Defendant contends that the trial court erred in granting the State's motion to dismiss his postconviction petition. A postconviction proceeding is a collateral attack on a conviction and " affords only limited review of constitutional claims not presented at trial." People v. Harris, 224 Ill.2d 115, 124, 862 N.E.2d 960, 308 Ill.Dec. 757 (2007). The scope of such a proceeding is limited to constitutional issues that have not been, and could not have been, previously adjudicated. Id. " Any issues that could have been raised on direct appeal, but were not, are procedurally ...