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People v. Wallace

Court of Appeals of Illinois, First District, Third Division

November 16, 2016

KEVIN WALLACE, Petitioner-Appellant.

          Rule 23 order filed September 29, 2016

          Rule 23 order withdrawn November 7, 2016

          Rehearing denied November 7, 2016

         Appeal from the Circuit Court of Cook County, No. 07-CR-00750; the Hon. Thomas P. Fecarotta, Jr., Judge, presiding.


          Michael J. Pelletier, Patricia Mysza, and Kate E. Schwartz, of State Appellate Defender's Office, of Chicago, for appellant.

          Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Brian K. Hodes, Assistant tate's Attorneys, of counsel), for the People.

          COBBS JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment and opinion.


          JUSTICE COBBS.

         ¶ 1 Defendant Kevin Wallace appeals from the second-stage dismissal of his amended petition for relief under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 et seq. (West 2012). Defendant contends, for the first time on appeal, that his negotiated concurrent sentences for first degree murder and arson are void because relevant statutes mandate consecutive sentences. He argues that he may challenge his sentence at any time under the void sentence rule and that our supreme court's recent abolishment of that rule in People v. Castleberry, 2015 IL 116916, cannot be applied retroactively to his case. Defendant also contends that postconviction counsel provided unreasonable assistance for failing to attach relevant evidence to his petition and failing to amend the petition to overcome a procedural bar. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 Following the death of defendant's father, Ronald Wallace, defendant was charged with 18 counts of first degree murder, two counts of aggravated arson, one count of residential arson, one count of armed robbery, and one count of robbery. On February 25, 2008, defendant entered a negotiated guilty plea to one count of first degree murder and one count of residential arson with concurrent 40-year and 10-year sentences, respectively. During the hearing on the negotiated plea, the trial court asked the defendant if he understood the nature of the charges and the rights he was relinquishing by pleading guilty. Defendant answered affirmatively to each question. The trial court also asked defendant, "Are you under the influence of any drugs or alcohol at this time?" He replied, "No, sir." Following the State's recitation of a stipulated factual basis, the court accepted defendant's guilty plea and sentenced him to the agreed upon concurrent sentences. Defendant did not file a motion to withdraw his guilty plea and did not file a direct appeal.

         ¶ 4 Defendant filed a pro se postconviction petition pursuant to the Act on July 10, 2013. In the petition, defendant alleged, inter alia, that his plea was "the result of his mental condition and psychological pressure, " that he "was not reasoning properly for a plea, " and that he was "under psychotropic medication treatment" and had been "on psychotropic medications since the age of 13." He further alleged that his trial counsel was constitutionally ineffective for failing to investigate "the mental health and drug's [sic] abuse issue." Defendant attached supporting affidavits from Keith Wallace and Dorothy Wallace to his petition.[1] Keith averred that defendant had been "on and off of several different psychotropic medications since before his incarceration" and "during the year of his trial, [defendant] often sounded over-medicated and unable to carry on a conversation. During court appearances [defendant] seemed unaware and disconnected." Dorothy averred that defendant was on "Ritilon" [sic] as a child and saw a psychiatrist when he was older. She was "not sure exactly what he was on, but they tried several different ones that didn't seem to help him." Defendant subsequently refiled his petition and newly attached various medical records from his incarceration, dating from 2011 to 2012.

         ¶ 5 The trial court docketed defendant's petition on August 30, 2013, and appointed an attorney to represent him. Postconviction counsel filed a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) on December 5, 2013. In the certificate, counsel asserted that she had consulted with defendant by phone and letter to ascertain his contentions, examined the "report of proceedings and relevant documents" concerning defendant's plea and sentencing, and examined defendant's petition and the documents attached to it. She also asserted that she had reviewed documents in defendant's file and attached those relevant to her certificate. The attached documents included two orders by the trial court directing a hospital and correctional center to release defendant's medical records, subpoenas to the hospital and correctional center, and a transcript from court proceedings prior to defendant's plea. The transcript reflects that defendant was not present in court due to ...

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