People v. DeSavieu

• Decision Date: 30 December 1993
• Docket Number: No. 1-91-2543,1-91-2543
• Citation: 628 N.E.2d 1117,256 Ill.App.3d 731,195 Ill.Dec. 653
• Parties: , 195 Ill.Dec. 653 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jean DeSAVIEU, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1117

628 N.E.2d 1117

256 Ill.App.3d 731, 195 Ill.Dec. 653

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jean DeSAVIEU, Defendant-Appellant.

No. 1-91-2543.

Appellate Court of Illinois First District, Fourth Division.

Dec. 30, 1993.

Office of the State Appellate Defender, Chicago, Anna Ahronheim, Asst. Appellate Defender, of counsel, for defendant-appellant.

Jack O'Malley, State's Atty., Chicago, (Renee Goldfarb, Janet Powers Doyle & Sharon D. Opryszek, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice HOFFMAN delivered the opinion of the court:

The defendant, Jean DeSavieu, appeals from the dismissal of his pro se petition for post-conviction relief from his murder conviction. We consider: (1) whether the claims raised in the petition were barred by res judicata or waiver; (2) whether the doctrine of fundamental fairness requires this court to review the claims; and (3) whether the summary dismissal of the petition was improper because the trial court incorrectly believed that it admonished the defendant during the trial concerning his waiver of a jury instruction. For the following reasons, we affirm.

The defendant was charged with murder and in a jury trial, he presented evidence that he shot the victim in self-defense during an argument. The defendant decided that his trial counsel should not tender a jury instruction on the lesser-included offense of voluntary manslaughter and signed a waiver to that effect. The jury found the defendant guilty of murder. During the sentencing hearing, the defendant stated that he decided he did not want the instruction tendered because he felt the evidence proved he acted in self-defense. He further stated that he did not understand what the instruction meant until after he was found guilty and that his attorney did not "go into too much detail" about it. The defendant was sentenced to 40 years in prison on October 23, 1981.

The defendant appealed, raising numerous issues including that the trial court erred when it did not give the instruction sua sponte and that his waiver of the instruction was not knowing and voluntary; the appellate court rejected those arguments and affirmed the defendant's conviction. People v. DeSavieu (1983), 120 Ill.App.3d 420, 76 Ill.Dec. 104, 458 N.E.2d 504.

The defendant filed a pro se petition for post-conviction relief on June 14, 1991, and a motion for appointment of counsel. He argued, among other issues, that the trial court had a duty to instruct the jury on voluntary manslaughter and that the defendant "was not aware of the meaning of [the] instruction to the case." The trial court dismissed the petition without an evidentiary hearing finding that it did not raise any constitutional basis for relief. The defendant now appeals.

OPINION

Under the Post-Conviction Hearing Act, a person imprisoned in the penitentiary may file a petition for relief asserting that there was a substantial denial of his constitutional rights in the trial court proceedings which resulted in his conviction. (Ill.Rev.Stat.1991, ch. 38, par. 122-1.) The trial court shall review the petition within 30 days and if it finds that the petition is frivolous or patently without merit, it shall dismiss the petition without a hearing. (Ill.Rev.Stat.1991, ch. 38, par. 122-2.1(a)(2).) Because such petitioners are often persons of limited education, a petition is not frivolous or patently without merit when it contains a simple statement which presents the gist of a meritorious constitutional claim. (People v. Von Perbandt (1991), 221 Ill.App.3d 951, 164 Ill.Dec. 536, 583 N.E.2d 90.) The trial court's decision to dismiss a petition at this stage will not be reversed unless it was an abuse of discretion. People v. Dean (1992), 226 Ill.App.3d 465, 168 Ill.Dec. 488, 589 N.E.2d 888.

The defendant first argues that the post-conviction petition should not have been summarily dismissed because it sufficiently alleged he was denied effective assistance of trial counsel. Specifically, he claims that his trial counsel did not fully advise him on his decision not to tender a jury instruction on the lesser-included offense of voluntary manslaughter. The State responds that the issue is barred under res judicata because it was decided in the direct appeal of this case.

When a defendant has filed a direct appeal from his conviction, the judgment of the reviewing court is res judicata to all of the issues actually decided by the court and all other issues which could have been raised, but were not, are waived. (People v. Flores (1992), 153 Ill.2d 264, 180 Ill.Dec. 1, 606 N.E.2d 1078.) Post-conviction relief should not be granted when the petitioner merely rephrases previously-addressed issues in constitutional terms. Flores, 153 Ill.2d 264, 180 Ill.Dec. 1, 606 N.E.2d 1078.

On direct appeal in this case, one of the issues the defendant raised was whether his waiver of a jury instruction on voluntary manslaughter was knowing and intelligent. The appellate court noted that the defendant conceded he made the decision against the advice of his counsel and that he signed a waiver form to that effect. Also, the defendant's counsel informed the court that he had prepared the instruction, but the defendant refused to allow him to tender it. Based on these factors, the court found that the defendant's waiver was knowing and intelligent. (DeSavieu, 120 Ill.App.3d at 426, 76 Ill.Dec. at 108, 458 N.E.2d at 508.) As a result of the decision in the direct appeal, we believe that the State is correct in its argument that res judicata bars relitigation of this issue. It has been decided on direct appeal that the defendant's waiver of the instruction was knowing and intelligent. Although now in his post-conviction petition the defendant rephrases the issue as one involving ineffective assistance of counsel based on a failure to fully advise, the decision in the direct appeal that he knowingly and intelligently waived the instruction effectively bars that claim. As a result, the issue of ineffective assistance of counsel is barred by res judicata.

Even if the issue of ineffective assistance of counsel was not effectively barred by the decision in the direct appeal that the defendant's waiver of a voluntary manslaughter instruction was knowing and intelligent, the petition was insufficient to raise the claim. The failure to assert ineffective assistance of counsel on direct appeal generally results in waiver, but the waiver rule is relaxed when the facts relating to the alleged ineffectiveness do not appear on the face of the record. (People v. Owens (1989), 129 Ill.2d 303, 135 Ill.Dec. 780, 544 N.E.2d 276.) In such a case, the allegations of the petition must be supported by affidavits,...