People v. Gale
| Citation | 876 N.E.2d 171 |
| Decision Date | 07 September 2007 |
| Docket Number | No. 1-06-0038.,1-06-0038. |
| Parties | The PEOPLE of the State of Illinois, Respondent-Appellee, v. Eudeltro GALE, Petitioner-Appellant. |
| Court | United States Appellate Court of Illinois |
Office of the State Appellate Defender, Chicago, Michael J. Pelletier, Deputy Defender, Elena B. Penick, Assistant Appellate Defender, for Appellant.
Office of the Illinois State's Attorney, Chicago, Richard A. Devine, State's Attorney, James E. Fitzgerald, Mary L. Boland, Jessica L. Maclean, Assistant State's Attorneys, for Appellee.
Defendant Eudeltro Gale (defendant) filed a pro se postconviction petition from judgment, relating to his conviction for burglary. The trial court summarily dismissed the petition as frivolous and patently without merit. Defendant appeals, contending that the trial court erred in summarily dismissing his petition where he presented the gist of a meritorious constitutional claim focusing on ineffective assistance of trial counsel in relation to counsel's failure to obtain defendant's mental health records. Defendant also contends on appeal that he should not have been assessed certain filing fees because they are not mandated by statute and because they violate his due process and equal protection rights. Defendant asks that we reverse the trial court's summary dismissal of his pro se postconviction petition, remand the cause for further proceedings including the appointment of an expert to conduct a fitness examination of him, and vacate the court's order requiring him to pay costs and fees. For the following reasons, we affirm.
The underlying facts of this case have been set forth adequately in the order concerning defendant's direct appeal before this Court. See People v. Gale, No. 1-01-4279, 341 Ill.App.3d 1107, 304 Ill.Dec. 660, 853 N.E.2d 449 (2003) (). Accordingly, we state herein only those facts necessary to the disposition of this postconviction appeal.
Defendant was charged with burglary and possession of burglary tools in relation to an incident where a box containing a five-piece luggage set was taken from a railyard on South State Street in Chicago. On the day of his trial, defendant told the court that he was unhappy with his counsel's representation of him and the preparation of his case and did not want to proceed to trial. Defendant's counsel, however, informed the court that he was prepared and described his contact with defendant and the steps he and co-counsel had taken in preparation for trial. The trial court gave defendant the option to represent himself or obtain new counsel by that afternoon. Defendant refused to represent himself and requested a week's continuance to obtain counsel, which he explained his mother was doing for him by attempting to sell a parcel of land in Tennessee in order to finance his defense. However, when asked by the court, defendant did not have the names of any lawyers his mother or anyone had contacted for him, but stated he had this information in his prison cell. The trial court stated that it believed defendant was simply trying to delay trial and denied his motion for continuance.
Following trial testimony, which included that of a security manager from the railyard, two police officers who saw defendant carrying the box from a railcar and pursued him when he fled, and defendant himself, a jury found defendant guilty of burglary. Prior to sentencing, defendant was found eligible for a Treatment Alternative for Safe Communities (TASC) drug program and mental illness and substance abuse placement, but a review of his criminal history was still pending. Later, at his sentencing hearing, the State argued that while defendant had been found eligible for TASC, he was not a good candidate for this in light of his criminal record, which included three adjudications of delinquency for burglary as a juvenile and two convictions for burglary, two for attempted burglary, one for theft, one for unlawful use of a weapon by a felon, and one for possession of cannabis as an adult. Meanwhile, defendant's trial counsel argued in mitigation that defendant had a history of hospitalization for mental illness; defendant's presentence investigation report (PSI) revealed he had been hospitalized three times. Defense counsel also informed the court that defendant had been prescribed drugs for depression, that he had been addicted to drugs and alcohol since he was a child, and that he had been found eligible for TASC. Defense counsel further called defendant's mother to testify at the sentencing hearing regarding defendant's mental illness and drug problem. In light of all this, the trial court sentenced defendant to 16 years' imprisonment, stating that he had "an atrocious criminal record" and that this sentence was necessary for his rehabilitation and the protection of the public.
On direct appeal with this court, defendant contended that the trial court erred when it denied his pretrial motion for continuance to obtain private counsel, when it failed to order a competency hearing to determine his fitness to stand trial or be sentenced, and when it denied his petition for treatment as an alternative to imprisonment. The reviewing court affirmed his conviction, holding that the trial court's denial of the motion for continuance was proper because defendant was trying to delay his trial, that its failure to order a competency hearing was proper as there was no bona fide doubt regarding his fitness to stand trial, and that its denial of his treatment-alternative petition was proper since, though he was found eligible for TASC, the evaluators had not yet reviewed his criminal history and the trial court doubted both his rehabilitative potential and the safety of the public if he were not imprisoned. See People v. Gale, No. 1-01-4279, 341 Ill.App.3d 1107, 304 Ill.Dec. 660, 853 N.E.2d 449 (2003) (). Later, defendant filed a pro se motion for order nunc pro tunc, arguing that the trial court had unlawfully sentenced him to 16 years' imprisonment for a Class 2 offense which allows only for a 14-year maximum. Upon review, the trial court corrected the original mittimus in the cause to reflect that defendant had been sentenced as a Class X offender due to his prior criminal history.
Defendant then filed a pro se postconviction petition alleging seven principle grounds for relief: (1) the trial court improperly sentenced him to 16 years for burglary; (2) it erred in denying his motion for continuance regarding his issues with defense counsel; (3) it improperly denied his motion for continuance that would have allowed TASC to evaluate him; (4) it improperly conducted voir dire; (5) it failed to inform the jury of a potential lesser-included offense; (6) it erred by allowing the jury to see certain evidence and then telling the jury to disregard it; and (7) he was denied effective assistance of trial counsel because counsel did not prepare for trial and did not challenge a certain juror's conduct during trial. The court addressed each of defendant's claims, ultimately finding his postconviction petition to be frivolous and patently without merit. Specifically, the court found that defendant was properly sentenced to 16 years' imprisonment because he was sentenced as a Class X offender, res judicata barred his claims concerning the dismissals of his motions for continuance (the trial and appellate courts already decided the issue regarding defense counsel, and the TASC evaluation issue had already been raised on appeal), defendant had no support for his claim regarding voir dire, waiver barred his claims regarding a lesser-included-offense instruction and the jury's viewing of evidence since these could have been raised on direct appeal, and defendant could not show that counsel's performance was unreasonable or that he suffered prejudice from ineffectiveness. Accordingly, the court summarily dismissed defendant's petition. Following this, the court assessed defendant "filing fees and actual court costs in the amount of $105.00; $90.00 for filing a petition to vacate, modify, or reconsider final judgment plus $15.00 in mailing fees, pursuant to 705 ILCS 105/27.2(a) (West 2004)."
On appeal, defendant asserts that the trial court erred in summarily dismissing his postconviction petition because it stated the gist of a constitutional claim entitling him to relief. Specifically, he contends that he adequately demonstrated he was denied effective assistance of trial counsel when his counsel failed to obtain his mental health records where such records could have given rise to a bona fide doubt of his fitness to stand trial and could have served as mitigation at sentencing. In addition, defendant contends that, regardless of our finding on that issue, he should not have been assessed a $90 filing fee because it is not mandated by statute, and the assessment of costs and fees should be vacated as violative of his federal and state rights to due process and equal protection. We disagree with each of defendant's contentions.
We turn first to defendant's contention concerning the summary dismissal of his postconviction petition.
The Illinois Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2004)) provides a tool to criminal defendants by which they can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution, the Illinois Constitution, or both. See 725 ILCS 5/122-1(a) (West 2004); see also People v. David Harris, 206 Ill.2d 293, 299, 276 Ill. Dec. 286, 794 N.E.2d 181 (2002); accord People v. Coleman, 183 Ill.2d 366, 378-79, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998). "[P]ostconviction relief is limited to constitutional deprivations...
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