People v. Alberts

• Decision Date: 26 June 2008
• Docket Number: No. 4-07-0582.,4-07-0582.
• Citation: 383 Ill.App.3d 374,890 N.E.2d 1208
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Perry ALBERTS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

890 N.E.2d 1208

383 Ill.App.3d 374

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Perry ALBERTS, Defendant-Appellant.

No. 4-07-0582.

Appellate Court of Illinois, Fourth District.

June 26, 2008.

Presiding Justice APPLETON delivered the opinion of the court:

In March 2002, a jury convicted defendant, Perry Alberts, of 11 counts of aggravated criminal sexual assault. In May 2002, the trial court sentenced him to 111 years in prison. On direct appeal, this court affirmed the majority of defendant's convictions and sentences, reversing one and vacating the corresponding sentence on the basis of the one-act, one-crime rule. People v. Alberts, No. 4-02-0506, 353 Ill. App.3d 1113, 317 Ill.Dec. 496, 881 N.E.2d 982 (December 2, 2004) (unpublished decision under Supreme Court Rule 23).

In September 2005, defendant filed a pro se postconviction petition. The circuit court appointed counsel to represent defendant, and counsel twice amended defendant's petition. In June 2007, the court granted the State's motion to dismiss, and defendant appeals from that second-stage dismissal. We affirm in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

The parties are familiar with the factual details of this case, so we need not reiterate them here. At the time of the offense, defendant and his wife were experiencing marital difficulties. On September 12, 2000, defendant sexually assaulted his wife and was charged and convicted of the crimes at issue.

On September 12, 2005, after his trial and direct appeal, defendant filed a pro se postconviction petition, claiming his trial counsel was ineffective for failing to raise the issue of his fitness to stand trial. Initially, the circuit court dismissed defendant's petition as frivolous and patently without merit. Upon defendant's pro se motion to reconsider, the court vacated its order and appointed counsel to represent defendant.

In July 2006, counsel for defendant filed an amended postconviction petition, alleging eight claims of error, focusing primarily on the ineffective assistance of trial and appellate counsel. Defendant's specific allegations are as follows: (1) his trial attorney failed to adequately consult with him about a plea bargain being offered by the State after defendant's first trial, which ended in a mistrial; (2) his trial attorney failed to raise a doubt of defendant's fitness to stand trial; (3) his trial attorney failed to pursue a defense strategy of involuntary intoxication; (4) his trial attorney relied on the deposition of a doctor's opinion, even after defendant informed counsel of the misstatements contained therein; (5) his trial attorney failed to rely on the prior inconsistent statements of other witnesses; (6) his appellate attorneys (the same attorneys that represented defendant at trial) failed to raise on appeal the issue of trial counsel's ineffectiveness regarding the involuntary-intoxication defense; (7) his appellate attorneys failed to raise on appeal the issue of trial counsel's ineffectiveness regarding his failure to adequately consult with defendant about the State's plea bargain; and (8) he is actually innocent of the crimes because he was involuntarily intoxicated.

In April 2007, the State filed a motion to dismiss. In June 2007, the parties convened for a hearing on the State's motion. The circuit court allowed defendant to file a second-amended petition instanter. This second-amended petition added the claim that the trial court had violated defendant's due-process rights by allowing him to proceed to trial when he was legally unfit. After considering the arguments of counsel, the court granted the State's motion, finding defendant had failed to demonstrate a substantial deprivation of his constitutional rights. This appeal followed.

II. ANALYSIS

The standard by which second-stage dismissals are reviewed is de novo. People v. Enis, 194 Ill.2d 361, 376, 252 Ill.Dec. 427, 743 N.E.2d 1, 11 (2000). We begin our review by recalling the familiar principles concerning postconviction proceedings.

The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-8 (West 2006)) provides a means by which a defendant may challenge his conviction or sentence for violations of federal or state constitutional rights. Such a proceeding is not an appeal of a defendant's underlying judgment, but a collateral attack on the judgment. In order for a defendant to be entitled to postconviction relief, he must establish a substantial deprivation of his constitutional rights of issues that have not been, and could not have been, previously adjudicated. People v. Easley, 192 Ill.2d 307, 315-16, 249 Ill.Dec. 537, 736 N.E.2d 975, 984 (2000). "Waiver is not implicated, however, where a defendant's post[] conviction claim relies on evidence dehors the record." Enis, 194 Ill.2d at 375-76, 252 Ill.Dec. 427, 743 N.E.2d at 10.

The dismissal of a postconviction petition is warranted at the second stage of the proceedings only when the allegations in the petition, liberally construed in light of the trial record, fail to make a substantial showing of a constitutional violation. People v. Coleman, 183 Ill.2d 366, 382, 233 Ill.Dec. 789, 701 N.E.2d 1063, 1072 (1998). At the second stage, "all factual allegations that are not positively rebutted by the record are accepted as true." People v. Hall, 217 Ill.2d 324, 334, 299 Ill.Dec. 181, 841 N.E.2d 913, 920 (2005).

Defendant claims the circuit court "overstepped [its] authority" by ruling on the merits of the petition, rather than conducting the proper second-stage inquiry of determining only the sufficiency of the pleading. Indeed, our supreme court has stated that "`it is not the intent of the [A]ct that [such] claims be adjudicated on the pleadings.'" Coleman, 183 Ill.2d at 382, 233 Ill.Dec. 789, 701 N.E.2d at 1072, quoting People v. Airmers, 34 Ill.2d 222, 226, 215 N.E.2d 225, 228 (1966). However, that principle only applies when a petitioner's claims are based upon matters outside the record. Coleman, 183 Ill.2d at 382, 233 Ill.Dec. 789, 701 N.E.2d at 1072. Thus, despite defendant's contention, it is proper for a court to review not only the factual sufficiency, but the legal sufficiency of defendant's petition in light of the trial court record and applicable law. People v. Morris, 43 Ill.2d 124, 128, 251 N.E.2d 202, 204 (1969).

A. Defendant's Allegation of a Due-Process Violation

Defendant first claims that his due-process rights were violated when he was tried at a time when he was taking high doses of prescription psychotropic medication, causing him to be unfit to stand trial. He claims this allegation was sufficiently pled in the petition so as to avoid second-stage dismissal; and thus, the circuit court erred in making a determination on defendant's competence rather than allowing the issue to proceed to an evidentiary hearing.

Defendant has forfeited review of this issue by failing to raise it on direct appeal. See People v. Page, 193 Ill.2d 120, 135, 249 Ill.Dec. 874, 737 N.E.2d 264, 272 (2000). This is a claim that could have been previously raised as it was a matter of record that defendant was taking prescription medication. In fact, the trial court considered the issue at a pretrial hearing in September 2001 and questioned defendant's trial counsel about defendant's fitness to appreciate and understand the proceedings. Defense counsel responded that in his opinion, defendant was able to effectively participate in his defense despite the specified amount of psychotropic medications defendant was taking at the time. Referring to section 104-21(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/104-21(a) (West 2000) ("A defendant who is receiving psychotropic drugs shall not be presumed to be unfit to stand trial solely by virtue of the receipt of those drugs or medications")), the court found that defendant had failed to rebut the presumption that he was fit to stand trial. Despite his opportunity to do so, defendant did not raise the issue on direct appeal and is therefore precluded from raising it here for the first time.

However, "[i]t is well established that `[t]he doctrine of waiver does not bar review of an issue when the waiver arises from ineffective assistance of appellate counsel.'" People v. Moore, 177 Ill.2d 421, 428, 226 Ill.Dec. 804, 686 N.E.2d 587, 592 (1997), quoting People v. Foster, 168 Ill.2d 465, 474, 214 Ill.Dec. 244, 660 N.E.2d 951, 955 (1995). We discuss that issue below.

B. Ineffective Assistance of Counsel

Defendant claims that he received the ineffective assistance of counsel when his trial and appellate attorneys (the same attorneys) failed to demand a fitness hearing. To succeed on a claim of ineffective assistance of trial counsel, a defendant must satisfy the following two-pronged Strickland test: a defendant must allege facts which demonstrate that counsel's representation fell below an objective standard of reasonableness and that reasonable probability exists that, but for counsel's errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 698 (1984).

1. Trial Counsel

The test for evaluating prejudice is whether a reasonable probability exists that, if defendant would have received a section 104-21(a) (725 ILCS 5/104-21(a) (West 2000)) fitness hearing, the result of the proceeding would have been that he was found unfit to stand trial. People v. Mitchell, 189 Ill.2d 312, 334, 245 Ill.Dec. 1, 727 N.E.2d 254, 268 (2000). We find that such a reasonable probability does not exist in this case.

The prosecution of a defendant who is not fit to stand trial violates due process. People v. Haynes, 174 Ill.2d 204, 226, 220 Ill.Dec. 406, 673 N.E.2d 318, 328 (1996). In Illinois, a defendant is presumed to be fit to stand trial and will be considered unfit only if, because of the defendant's mental or physical condition, the...