People Of The State Of Ill. v. Petrenko, 107503.

• Citation: 342 Ill.Dec. 15,931 N.E.2d 1198,237 Ill.2d 490
• Decision Date: 04 June 2010
• Docket Number: No. 107503.,107503.
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Shawn PETRENKO, Appellant.
• Court: Supreme Court of Illinois

237 Ill.2d 490

931 N.E.2d 1198

342 Ill.Dec. 15

The PEOPLE of the State of Illinois, Appellee,

v.Shawn PETRENKO, Appellant.

No. 107503.

Supreme Court of Illinois.

June 4, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien, Deputy Def., Steven E. Wiltgen, Asst. Appellate Def. of Office of State Appellate Def., of Elgin, for Appellant.

Lisa Madigan, Atty. Gen., of Springfield, John J. Boyd, State's Atty., of Kankakee (Michael A. Scodro, Solicitor Gen., Michael M. Glick, Karl R. Triebel, Asst. Atty. Generals, of Chicago, of counsel), for the People.

OPINION

Justice THOMAS delivered the judgment of the court, with opinion.

This case presents two issues: (1) whether the trial court erred in summarily dismissing defendant's pro se postconviction petition as frivolous and patently without merit, and (2) whether the imposition of a 10-year prison term consecutive to a natural-life prison term was void in this case.

BACKGROUND

Following a jury trial, defendant, Shawn Petrenko, was convicted of one count of first degree murder (720 ILCS 5/9-1 (West 2000)) and one count of residential burglary (720 ILCS 5/19-3 (West 2000)). The circuit court of Kankakee County sentenced him to a term of natural life in prison for the first degree murder conviction and a consecutive term of 10 years in prison for the residential burglary. Defendant appealed, and the appellate court affirmed both the convictions and the sentences. People v. Petrenko, No. 3-02-0507, 355 Ill.App.3d 1201, 319 Ill.Dec. 315, 885 N.E.2d 586 (2005) (unpublished order under Supreme Court Rule 23).

Defendant later filed a 17-page pro se postconviction petition raising 31 separate claims. The trial court summarily dismissed the petition as frivolous and patently without merit, and defendant appealed. On appeal, defendant argued that the summary dismissal of his petition was improper because two of his ineffective assistance of counsel claims stated the gist of a meritorious constitutional claim. In addition, defendant argued for the first time that, under this court's decision in People v. Palmer, 218 Ill.2d 148, 300 Ill.Dec. 34, 843 N.E.2d 292 (2006), his consecutive term of years was void and must be modified to run concurrently with the natural-life term. The appellate court rejected both of defendant's arguments, finding that summary dismissal was proper and that defendant had forfeited the Palmer argument by not raising it previously. 385 Ill.App.3d 479, 324 Ill.Dec. 797, 896 N.E.2d 873. We allowed defendant's petition for leave to appeal. 210 Ill.2d R. 315.

ANALYSIS

Before this court, defendant raises the same two arguments that he raised below. First, defendant argues that he received ineffective assistance of both trial counsel and appellate counsel. According to defendant, his trial counsel was ineffective for failing to request a Franks hearing to contest the validity of a search warrant (see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)), and his appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness as an issue on direct appeal. Second, defendant argues that, under Palmer, his 10-year sentence for residential burglary must be modified to run concurrently with, rather than consecutively to, his natural-life term.

Summary Dismissal

The Post-Conviction Hearing Act

The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2006)) provides a method by which persons under criminal sentence can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both. See 725 ILCS 5/122-1 et seq. (West 2006). A circuit court may summarily dismiss a postconviction petition if it determines that the petition is “frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2006). This court recently explained that a petition is frivolous or patently without merit only if it has no “arguable basis either in law or in fact.” People v. Hodges, 234 Ill.2d 1, 16, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009). A petition lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as one that is completely contradicted by the record. Hodges, 234 Ill.2d at 16, 332 Ill.Dec. 318, 912 N.E.2d 1204. A petition lacks an arguable basis in fact if it is based upon a fanciful factual allegation, such as one that is clearly baseless, fantastic or delusional. Hodges, 234 Ill.2d at 16-17, 332 Ill.Dec. 318, 912 N.E.2d 1204. The summary dismissal of a postconviction petition is a legal question that is subject to de novo review. People v. Coleman, 183 Ill.2d 366, 388-89, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998).

Here, defendant's pro se petition alleged that both his trial counsel and his appellate counsel provided ineffective assistance. Ineffective assistance of counsel claims are governed by the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by this court in People v. Albanese, 104 Ill.2d 504, 85 Ill.Dec. 441, 473 N.E.2d 1246 (1984). To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. More specifically, the defendant must demonstrate that counsel's performance was objectively unreasonable under prevailing professional norms and that there is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. The Strickland standard applies equally to claims of ineffective appellate counsel, and a defendant raising such a claim must show both that appellate counsel's performance was deficient and that, but for counsel's errors, there is a reasonable probability that the appeal would have been successful. People v. Golden, 229 Ill.2d 277, 283, 322 Ill.Dec. 569, 891 N.E.2d 860 (2008). At the first stage of proceedings under the Act, a petition alleging ineffective assistance of counsel may not be summarily dismissed if (i) it is arguable that counsel's performance fell below an objective standard of reasonableness and (ii) it is arguable that the defendant was prejudiced. Hodges, 234 Ill.2d at 17, 332 Ill.Dec. 318, 912 N.E.2d 1204.

Although defendant raised numerous ineffective assistance of counsel claims in his pro se petition, only two of those claims are at issue in this appeal. The first is that defendant's trial counsel was ineffective for failing to contest the validity of the search warrant that was issued for defendant's home. The second is that defendant's appellate counsel was ineffective for failing to raise trial counsel's error as an issue on direct appeal.

In support of these claims, defendant maintains that the officer who requested the search warrant for defendant's home “knowingly and with reckless disregard for the truth included false statements” in the affidavit he submitted in support of the warrant application. In that affidavit, the officer informed the court that the victim, Rubin Rivas, was found face down and dead in his home, having been bludgeoned to death with “a hammer, or similar object.” Rivas lived in one unit of a duplex, with defendant and his family occupying the other. According to the officer, the evidence linking defendant to the crime included the following: a left-handed white glove with red, blue, and white paint on it that was found in Rivas's house; a right-handed white glove with red, blue, and white paint on it that was found in defendant's garbage; mail addressed to Rivas that was found in defendant's garbage; a small metal object broken off in the lock of Rivas's back door; a broken key with the tip missing that was found in defendant's garbage; and a fingerprint from defendant that was found in Rivas's home on an empty ceramic jar in which Rivas was known to keep his rent money in cash. Based on this information, the circuit court issued a search warrant for defendant's home, where additional evidence was found linking defendant to the murder.

According to defendant, the record shows that the officer who requested the search warrant for defendant's home intentionally omitted from the supporting affidavit certain information that, if disclosed, would have negated the presence of probable cause. Specifically, defendant contends the officer's trial testimony shows that, at the time he requested the warrant, the officer knew that defendant had been a guest in Rivas's home approximately five days before the murder. This information, defendant insists, provided a lawful explanation for the presence of defendant's fingerprint on the empty money jar and therefore would have precluded a probable cause finding if disclosed. Accordingly, defendant's trial counsel was ineffective for failing to contest the validity of both the warrant and the evidence it produced, once the officer's knowledge was disclosed at trial. In addition, defendant argues that his appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness as an issue on direct appeal.

After thoroughly reviewing both defendant's petition and the supporting record, we conclude that the trial court properly dismissed defendant's pro se petition as frivolous and patently without merit. To begin with, defendant has clearly forfeited his claim that trial counsel was ineffective for failing to contest the validity of the search warrant. A postconviction proceeding is not an appeal from the judgment of conviction, but is a collateral attack on the trial court proceedings. People v. Johnson, 191 Ill.2d 257, 268, 246 Ill.Dec. 642, 730 N.E.2d 1107 (2000). Consequently, issues that could have been...