People v. Dominguez
| Decision Date | 10 March 2005 |
| Docket Number | No. 2-03-1016, No. 2-03-1212. |
| Citation | 291 Ill.Dec. 982,824 N.E.2d 1232,356 Ill. App.3d 872 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ramon J. DOMINGUEZ, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Jed H. Stone, John Curnyn, Stone & Associates, Waukegan, for Ramon J. Dominguez.
Michael J. Waller, Lake County State's Attorney, Waukegan, Martin P. Moltz, Deputy Director, Barry W. Jacobs, State's Attorneys Appellate Prosecutor, Elgin, for the People.
Michael J. Waller, Lake County State's Attorney, Waukegan, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, for the People in No. 2-03-1212.
Following a jury trial, defendant, Ramon J. Dominguez, was convicted of first-degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 1998)) and, following a fitness hearing, was sentenced to 28 years' imprisonment. This case currently is before this court on defendant's consolidated appeals from the trial court's dismissal of his postconviction petition and from the denial of his motion to reconsider that dismissal. Defendant argues that the trial court applied the wrong standard of review and therefore erred when it dismissed defendant's postconviction petition during the first stage of the proceedings. Although the trial court applied the correct standard, we reverse the trial court's decision and remand this cause for second-stage proceedings, because we hold that the court reached the wrong conclusion.
Because the facts of this case have been set forth in great detail in People v. Dominguez, 331 Ill.App.3d 1006, 1008-13, 266 Ill.Dec. 97, 773 N.E.2d 1167 (2002), this court's decision on defendant's direct appeal of his conviction and sentence, they will not be set forth here. What follows is this case's relevant procedural history.
After this court affirmed defendant's conviction and sentence (Dominguez, 331 Ill.App.3d at 1017, 266 Ill.Dec. 97, 773 N.E.2d 1167), defendant, with the assistance of retained counsel, filed a timely postconviction petition on June 5, 2003. Specifically, the petition claimed that defendant was denied effective assistance of counsel because his trial counsel (1) failed to tender to the trial court or recommend to defendant that the jury be offered a lesser included offense instruction of involuntary manslaughter; (2) failed to have the alleged murder weapon independently examined; (3) failed to use an interpreter when discussing with defendant the possibility of tendering the lesser included offense instruction; and (4) failed to investigate defendant's mental health. Additionally, the petition claimed that defendant was denied a fair trial because the trial court did not issue sua sponte the lesser included offense instruction, and that the State violated its obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by not disclosing that defendant was being medicated.
On August 5, 2003, the trial court, in a written order, summarily dismissed the petition as frivolous and patently without merit. Specifically, the trial court ruled that defendant's trial counsel was not ineffective because (1) the failure to tender the lesser included offense instruction was the result of an "all-or-nothing" trial strategy decided upon by defendant and his counsel; (2) the failure to have the gun independently examined was a matter of trial strategy, which was not called into doubt by the record or by the submission of affidavits from any potential witnesses or an explanation of the significance of their testimony; (3) the alleged failure to use an interpreter conflicted with the record and the trial court's own observations of and interaction with defendant, all of which demonstrated that defendant was able to communicate effectively with his attorneys; and (4) the failure to investigate defendant's mental health was not supported by any evidence not already considered by the trial court when it determined that there was no bona fide doubt about defendant's fitness to stand trial. Additionally, the trial court ruled that its failure to give the lesser included offense instruction sua sponte was not erroneous, because one was not tendered. Finally, the trial court ruled that defendant's claim that the State violated its obligation under Brady v. Maryland lacked merit because there was no evidence in the record, or affidavit stating, that defendant was unaware that he was being medicated or that he could not remember being given drugs. To the contrary, the court found, defendant identified the drugs he ingested and detailed their effects.
After the trial court dismissed defendant's postconviction petition, defendant, on August 27, 2003, filed a pro se notice of appeal from that dismissal. On September 4, 2003, defendant, with the assistance of counsel, moved to withdraw his pro se notice of appeal, filed a new notice of appeal (amended on September 17, 2003), and filed a motion to reconsider the dismissal of his postconviction petition. The motion to reconsider asserted that the trial court had applied the wrong standard and sought to incorporate into the postconviction petition those Department of Corrections medical records that would support defendant's fitness claim. Attached to the motion were affidavits from defendant's trial counsel, stating, inter alia, that an interpreter was not used to advise defendant of his right to a lesser included offense instruction, and from defendant's priest, stating concerns that defendant went to trial while unable to understand his lawyer, who ignored those concerns.
On October 1, 2003, after brief arguments, the trial court denied defendant's request for a hearing on his motion to reconsider. During the arguments, the trial court expressed serious doubt as to whether it could hear the motion to reconsider, because the cause remained within the 90-day period allowed for the trial court to review the petition without input from any party. On October 24, 2003, defendant filed a timely notice of appeal from the trial court's refusal to hear the motion.
Before proceeding to the merits of this case, there are jurisdictional issues that must be resolved. An appellate court is under a duty to consider its jurisdiction and to dismiss an appeal if jurisdiction is lacking. Ferguson v. Riverside Medical Center, 111 Ill.2d 436, 440, 96 Ill.Dec. 47, 490 N.E.2d 1252 (1985); Gilkey v. Scholl, 229 Ill.App.3d 989, 992, 172 Ill.Dec. 120, 595 N.E.2d 183 (1992). Even if the issue is not raised by the parties, this court must determine the question of its jurisdiction (Carlson v. Powers, 225 Ill.App.3d 410, 413, 167 Ill.Dec. 625, 587 N.E.2d 1240 (1992)) prior to deciding the merits of an appeal (Steel City Bank v. Village of Orland Hills, 224 Ill.App.3d 412, 416, 166 Ill.Dec. 667, 586 N.E.2d 625 (1991)). In this case, the primary issue is whether the trial court had jurisdiction over the motion to reconsider the dismissal of the postconviction petition.
This court lacks jurisdiction over, and cannot consider the parties' arguments on the merits of, an appeal taken from a trial court order when the trial court itself lacked jurisdiction to entertain the motion giving rise to the order being appealed. Village of Glenview v. Buschelman, 296 Ill.App.3d 35, 42, 230 Ill.Dec. 491, 693 N.E.2d 1242 (1998). In this case, the trial court expressed serious doubt as to whether it could hear the motion to reconsider because the cause remained within the 90-day period allowed for the trial court to review the petition without input from any party. The trial court, however, appears to have miscounted. Although the trial court has 90 days from the filing of a postconviction petition in which to review the petition without input from any party (725 ILCS 5/122-2.1(a) (West 2002)), that period had expired by the time defendant filed his motion to reconsider. Defendant's September 4, 2003, motion to reconsider was filed 91 days after defendant's June 5, 2003, postconviction petition. We note that generally there is no bar to a defendant filing a timely motion to reconsider the summary dismissal of a postconviction petition. The summary dismissal of a postconviction petition is a final judgment in a civil proceeding. 725 ILCS 5/122-2.1(a)(2) (West 2002); People v. Wilson, 37 Ill.2d 617, 619-20, 230 N.E.2d 194 (1967). A party may, within 30 days of the entry of a final judgment in a civil case, move the court to reconsider that judgment. 735 ILCS 5/2-1203(a) (West 2002); see also In re J.D., 317 Ill.App.3d 445, 448, 251 Ill.Dec. 110, 739 N.E.2d 1043 (2000). Indeed, defendants have exercised that right. See, e.g., People v. Newbolds, 352 Ill.App.3d 678, 679, 287 Ill.Dec. 903, 816 N.E.2d 1114 (2004)
(). Therefore, defendant's motion to reconsider, which was filed 30 days after the entry of the order dismissing the postconviction petition, was both timely and proper. Consequently, this court does have jurisdiction over defendant's appeal from the trial court's refusal to hear his motion to reconsider.
As a result of defendant's timely and proper motion to reconsider, however, the notice of appeal from the dismissal of defendant's postconviction petition, and the amended notice, are stricken. The final judgment dismissing a postconviction petition must be reviewed in accordance with the rules of the supreme court. 725 ILCS 5/122-7 (West 2002). According to the supreme court rules, an appeal from a final judgment is perfected only through the filing of a notice of appeal. 188 Ill.2d R. 606(a); see also 134 Ill.2d R. 651(a). Furthermore, although postconviction proceedings are civil proceedings (Wilson, 37 Ill.2d at 619-20,230 N.E.2d 194), appeals therefrom shall be in accordance with the rules governing criminal appeals...
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People v. Dominguez
...the ground that the petition stated the gist of a claim of ineffective assistance of counsel. People v. Dominguez, 356 Ill. App.3d 872, 884, 291 Ill.Dec. 982, 824 N.E.2d 1232 (2005) (Dominguez II). However, we questioned whether the petition would survive but for the fact that, at that time......
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People v. Dominguez
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