People v. Bradley

• Decision Date: 16 October 1984
• Docket Number: No. 4-84-0019,4-84-0019
• Citation: 83 Ill.Dec. 701,470 N.E.2d 1121,128 Ill.App.3d 372
• Parties: , 83 Ill.Dec. 701 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Frank BRADLEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1121

470 N.E.2d 1121

128 Ill.App.3d 372, 83 Ill.Dec. 701

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Frank BRADLEY, Defendant-Appellant.

No. 4-84-0019.

Appellate Court of Illinois,

Fourth District.

Oct. 16, 1984.

Fellheimer, Fellheimer, O'Dell & Travers, Ltd., Pontiac, for defendant-appellant; Carey J. Luckman, Pontiac, of counsel.

Donald D. Bernardi, State's Atty., Pontiac, Robert J. Biderman, Deputy Director, State's Attys. Appellate Service Commission, Michael Blazicek, Staff Atty., Springfield, for plaintiff-appellee.

TRAPP, Justice:

Following a jury trial, defendant Frank Bradley was convicted of indecent liberties with a child and sentenced to 4 years' imprisonment. On direct appeal, this court affirmed the conviction. The only claim asserted by Bradley in that appeal was that he should be granted a new sentencing hearing because the trial court had failed to consider the alternative of periodic imprisonment. (People v. Bradley (1983, 4th Dist., 113 Ill.App.3d 1172, 75 Ill.Dec. 384 457 N.E.2d 174, order under Supreme Court Rule 23).) Leave to appeal was thereafter denied in the Illinois Supreme Court.

Bradley then filed a petition for relief under the Post-Conviction Hearing Act. (Ill.Rev.Stat.1983, ch. 38, par. 122-1 et seq.) The petition alleged that the statute under which he was convicted is unconstitutionally vague; that the trial court lacked jurisdiction because the information charging him is defective; that he was denied a prompt preliminary hearing in violation of the Illinois Constitution; and that his constitutional guaranty against being placed in jeopardy twice for the same offense was violated. Bradley also alleged that the admission of a caseworker's testimony violated his constitutional right against self-incrimination and his right to assistance of counsel; that errors occurring at trial denied him due process of law and deprived him of a fair trial; and that the cumulative effect of the alleged errors deprived him of a fair trial. Bradley further argues that all of the above errors demonstrate that he was denied effective assistance of counsel at trial and on direct appeal of his conviction.

The circuit court found that Bradley failed to raise any issues of constitutional magnitude and that Bradley waived the alleged errors by failing to object at trial or to raise them on direct appeal. The circuit court also found that neither Bradley's trial counsel nor appellate counsel were incompetent.

In this appeal, Bradley argues that this court should consider all of the issues raised in his petition for post-conviction relief because fundamental fairness requires that the doctrine of waiver not be applied to the substantial violations of his constitutional rights.

A post-conviction proceeding does not afford a defendant yet another opportunity for the determination of guilt or innocence, but provides a new proceeding to redress errors in the conviction which violate substantial constitutional rights. (People v. Smith (1977), 56 Ill.App.3d 569, 13 Ill.Dec. 829, 371 N.E.2d 921.) The defendant is not entitled to an evidentiary hearing on his petition as a matter of right. (People v. Ford (1981), 99 Ill.App.3d 973, 55 Ill.Dec. 365, 426 N.E.2d 340.) The petition must make a substantial showing of a violation of a constitutional right. (People v. Arbuckle (1969), 42 Ill.2d 177, 246 N.E.2d 240.) Mere allegations that a trial error has constitutional ramifications does not elevate it to constitutional status. People v. Roberts (1979), 75 Ill.2d 1, 25 Ill.Dec. 675, 387 N.E.2d 331.

Where an appeal is taken from a conviction, the judgment of the reviewing court is res judicata as to all issues decided by the court and all issues which could have been presented are deemed waived. (People v. Brown (1972), 52 Ill.2d 227, 287 N.E.2d 663.) Only where application of the waiver doctrine would be manifestly inconsistent with fundamental fairness will waiver not be invoked in post-conviction proceedings. (People v. Adams (1972), 52 Ill.2d 224, 287 N.E.2d 695; People v. Hamby (1965), 32 Ill.2d 291, 205 N.E.2d 456.) The issue to be determined by this court is whether Bradley's post-conviction petition presents a substantial showing of a denial of constitutional rights, which may not be deemed to have been waived.

Bradley argues that section 11-4(a)(3) of the Criminal Code of 1961, under which he was convicted for committing indecent liberties with his daughter by performing a lewd fondling is unconstitutionally vague. (Ill.Rev.Stat.1983, ch. 38, par. 11-4(a)(3).) A statute is unconstitutionally vague when it fails to apprise a person of ordinary intelligence as to what conduct is prohibited. (People v. Gurell (1983), 98 Ill.2d 194, 74 Ill.Dec. 516, 456 N.E.2d 18.) The constitutionality of section 11-4(a)(3) was upheld in People v. Polk (1973), 10 Ill.App.3d 408, 294 N.E.2d 113. The court in Polk held that the statute provides fair notice of what conduct is proscribed. We agree and therefore find that Bradley's contention is without merit.

Next, Bradley argues that his conviction is void because the information charging him with performing a lewd fondling does not allege the specific acts constituting the offense and thus was not sufficient either to inform him of the charge so he could prepare his defense or to prevent his being subjected to another prosecution for the same offense. We do not agree.

Couched in the language of paragraph 11-4(a)(3), the information charging Bradley with indecent liberties alleged that he:

"[C]ommitted the offense of Indecent Liberties with a Child in that he, a person of the age of seventeen years and upwards performed a lewd fondling on [his daughter], a child under the age of sixteen years, to wit: fourteen years of age, done with the intent to arouse or to satisfy the sexual desires of either [his daughter] or himself * * * in violation of Section 11-4(a)(3) of Chapter 38 of the Illinois Revised Statutes."

An indictment which charges an offense in the language of a statute is sufficient when the statute apprises the defendant with reasonable certainty of the offense charged. (People v. Patrick (1967), 38 Ill.2d 255, 230 N.E.2d 843.) An information charging an offense of lewd fondling or touching, worded in substantially the same language as the statute is sufficient and need not specify the particular acts constituting the crime. People v. Rogers (1926), 324 Ill. 224, 154 N.E. 909.

Bradley additionally argues that the information is void because it uses the disjunctive conjunction "or" making it uncertain whether he was charged with committing the act with the intent to satisfy the desires of the victim or the desires of himself. Again, we disagree.

A charge which states the offense in the language of the statute and uses the disjunctive conjunction "or" is not defective where the statute does not provide a number of distinct and alternative acts which may singularly constitute the crime charged. (People v. Lewis (1973), 14 Ill.App.3d 237, 302 N.E.2d 157.) Bradley was charged with but one act--performing a lewd fondling. Use of the disjunctive conjunction "or" in setting apart the differing mental states provided by a statute does not render a charge fatally defective. (People v. Glass (1976), 41 Ill.App.3d 43, 353 N.E.2d 214.) Therefore, the use of "or" does not render the charge uncertain and the indictment charging Bradley is not defective.

Another issue raised by Bradley is that his constitutional right to a prompt preliminary hearing was violated. The information charging Bradley was filed on November 6, 1981. Bradley's preliminary hearing was scheduled for November 23, 1981. On that date, the State, realizing that it had summoned the wrong caseworker, moved for a continuance. The trial court rescheduled the hearing for December 8, 1981. The hearing took place on that date.

Section 7 of article I of the 1970 Illinois Constitution provides that a defendant who was not charged initially by a grand jury indictment and is held on a criminal charge punishable by imprisonment in the penitentiary, must be afforded a prompt preliminary hearing to determine probable cause. Because the legislature has not provided a remedy for a violation of this section, the majority of reviewing courts, declining to fashion a remedy, have refused to dismiss the charges against the defendant. People v. Howell (1975), 60 Ill.2d 117, 324 N.E.2d 403; People v. Meredith (1980), 86 Ill.App.3d 1136, 42 Ill.Dec. 575, 409 N.E.2d 70; People v. Anderson (1981), 92 Ill.App.3d 849, 48 Ill.Dec. 183, 416 N.E.2d 78; People v. Hunt (1975), 26 Ill.App.3d 776, 326 N.E.2d 164.

We need not determine whether Bradley's right to a prompt preliminary hearing was violated nor need we decide what remedy is available for such a violation. Bradley's failure to raise the issue upon direct review of his conviction waives the question. Only where fundamental fairness requires will the rule of waiver be relaxed. Under the facts of this case, the delay occasioned by the granting of the continuance did not deprive Bradley of a fair and impartial trial. Even Bradley does not claim that the delay hampered the presentation of his defense. The issue has been waived.

The following facts form the basis for Bradley's next argument on appeal. Initially, the State charged Bradley with committing indecent liberties on November 2, 1981. Prior to trial, the trial court granted the State's motion to add an additional count charging Bradley with committing indecent liberties on November 3, 1981. That count, charging Bradley with committing indecent liberties on November 3, was dismissed with prejudice after the jury was impaneled. In its opening statement, the State referred to the act of lewd fondling as occurring on November 3, 1981. At one point during cross-examination, Bradley's daughter referred to the incident as occurring on November 3, 1981. The jury was instructed that if they...