People v. Gardner, No. 1-01-1003.

• Court: Illinois Appellate Court
• Citation: 331 Ill. App.3d 358,264 Ill.Dec. 622,771 N.E.2d 26
• Docket Number: No. 1-01-1003.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clarence GARDNER, Defendant-Appellant.
• Decision Date: 15 May 2002

771 N.E.2d 26
331 Ill. App.3d 358
264 Ill.Dec. 622

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Clarence GARDNER, Defendant-Appellant

No. 1-01-1003.

Appellate Court of Illinois, First District, Third Division.

May 15, 2002.

771 N.E.2d 28

Jeff S. Pitzer, Clark C. Johnson and Christina T. Tomaras, Jenner & Block, LLC, Chicago, for Appellant

Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, Michelle Grimaldi Stein and Annette Collins, of counsel), for Appellee.

Justice WOLFSON delivered the opinion of the court:

In 1995, Clarence Gardner was convicted of first degree murder and sentenced to 35 years in prison. We affirmed his conviction and sentence on direct appeal in 1996. People v. Gardner, 282 Ill.App.3d 209, 217 Ill.Dec. 940, 668 N.E.2d 125 (1996). In December 2000, Gardner filed a post-conviction petition, which the trial court denied as untimely. The trial court also found his petition frivolous and without merit. Gardner appeals the trial court's summary dismissal, contending: (1) the delay in filing the petition was not due to his culpable negligence; and (2) under People v. Strain, 194 Ill.2d 467, 252 Ill. Dec. 65, 742 N.E.2d 315 (2000), he was denied his right to a fair trial by the trial court's refusal to ask questions concerning gang bias during voir dire. We reverse and remand for further proceedings.

FACTS

Gardner was convicted under a theory of accountability for the shooting death of Joseph Waites, Jr. The murder was the result of gang rivalry and much of the evidence at trial focused on Gardner's affiliation with the Gangster Disciples street gang. The facts of the murder are set out in our opinion on direct appeal. See Gardner, 282 Ill.App.3d at 211-13, 217 Ill.Dec. 940, 668 N.E.2d 125.

During a pretrial conference, defendant sought to have the trial court ask the following questions during voir dire:

"1. Have you ever known anyone who was in a gang? (If answer is yes, ask follow up questions.)

a. Do you think that someone who is in a gang is necessarily a criminal?

b. Do you understand that it is not a crime just to join a gang?

771 N.E.2d 29

c. Do you understand that one member of a gang is not legally responsible for the actions of other gang members just because they are in the same gang?

d. Would you be able to put aside any feelings you may have about gangs, and give the defendant a fair trial based on the evidence?" (Emphasis added.)

At the hearing, the trial court discussed the questions with defense counsel:

"THE COURT: * * * Now, do you want me to ask a question of the jury— well, I'll ask if you have a question of the jury which you want asked, I will ask it. I could ask a question something on the order of you—do you have any connection with gangs or with—if there were any evidence of gang membership would that influence your outcome or your verdict one way or the other.

[DEFENSE COUNSEL]: We would like you to ask something. And in fact, given that we didn't know until today that we were going to be before you and didn't know how you did voir dire, we had prepared certain questions we were going to tender to the court which include questions of that character. They include other questions, as well.

THE COURT: All right. On the proposed questions, I will ask this question. `Have you or any member of your immediate family ever had any direct involvement with a street gang.' I'm not going to ask questions A, B, C, and D. All right. I'll follow up on that question. And if they answer yes, I'll see what it is."

During voir dire, the trial court first asked, "Have you or any member of your immediate family had any direct involvement with a street gang?" No prospective juror said he or she had any direct involvement with a gang. Next, the court asked, "Have you or any member of your family had any indirect involvement with a street gang?" One juror answered "yes."

The following exchange took place between the trial court and the juror who answered he had had indirect involvement with a street gang:

"Q: You said you had some indirect involvement with street gangs or [sic] member of your immediate family?

A: I grew up in * * * Pilsen street area, also Little Village area. * * * I have five brothers. Indirectly we were involved with one gang or another indirectly during our youth.

Q: Is there anything about that that would prevent you from giving both sides a fair trial?

A: No, sir."

This juror eventually was excused for cause on the State's motion. The motion was based on the juror's answer to a different question. The court did not ask any other questions concerning gang bias.

PROCEDURAL FACTS

After he was convicted and sentenced, defendant raised several issues on direct appeal. One of the issues raised was the same one he raises here: the trial court erred in failing to ask more questions surrounding gang bias during voir dire. On direct appeal we affirmed the trial court and found no error. We found, without extended discussion, the trial court's questions were sufficient to address the possibility of juror bias.

Defendant filed a petition for leave to appeal to the supreme court. The supreme court denied defendant's petition on October 2, 1996. People v. Gardner, 168 Ill.2d 606, 219 Ill.Dec. 569, 671 N.E.2d 736 (1996).

771 N.E.2d 30

Defendant next filed a petition for writ of habeas corpus in the Northern District Court of Illinois. Defendant again raised the voir dire issue. The District Court denied defendant's petition. A Seventh Circuit panel reversed the lower court's decision, finding, in part, that the trial court erred in limiting voir dire. Gardner v. Barnett, 175 F.3d 580 (1999). On petition for rehearing en banc, the Seventh Circuit vacated its opinion and affirmed the lower court's denial of defendant's habeas corpus petition. Gardner v. Barnett, 199 F.3d 915 (7th Cir.1999)

Defendant filed a petition for post-conviction relief in December 2001, six weeks after the Illinois Supreme Court decided People v. Strain, 194 Ill.2d 467, 252 Ill. Dec. 65, 742 N.E.2d 315 (2000)—where gang-related testimony is "pervasive," the failure to ask questions surrounding gang bias during voir dire amounts to reversible error.

Defendant recognized his petition was untimely, but said:

"[Defendant] has not been culpably negligent in pursuing his rights. Rather, [defendant] timely presented his contention on direct appeal. [Defendant] brings this petition now because last month, in another matter, the Illinois Supreme Court clarified that [defendant] has been correct all along in his contention that his Illinois constitutional rights were violated by the trial court's refusal to permit voir dire concerning street gang bias. [Citing People v. Strain in a footnote.] It is on the basis of that clarification that [defendant] seeks this post-conviction relief. [Defendant] could not have sought this post-conviction relief any earlier because the Supreme Court's clarification had not issued; he brings this petition approximately six weeks after the clarification."

The trial court summarily dismissed defendant's petition, finding it untimely. The court found defendant could not "escape the fact that he was culpably negligent in filing the * * * petition beyond the prescribed time period" because the Strain court did not indicate its holding applied retroactively. It also found the Strain issue barred by res judicata because it was decided on direct appeal.

DECISION

TIMELINESS OF PETITION

Defendant contends the trial court erred in finding his petition untimely. Because he raised the voir dire issue on direct appeal, defendant claims he would have been barred from raising the issue in a post-conviction petition before Strain was decided by the supreme court.

The Post-Conviction Hearing Act (Act)(725 ILCS 5/122-1 et seq. (West 1998)) provides a three-stage process for adjudication of post-conviction petitions. People v. Frieberg, 305 Ill.App.3d 840, 846, 238 Ill.Dec. 964, 713 N.E.2d 210 (1999). During the first stage the trial court determines, without any input from the State or further pleadings from the defendant, whether the petition is frivolous or patently without merit. Frieberg, 305 Ill.App.3d at 847, 238 Ill.Dec. 964, 713 N.E.2d 210. At this first stage, the trial court must accept as true all facts pleaded in the petition, unless the trial record positively rebuts these pleadings. People v. Coleman, 183 Ill.2d 366, 385, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998).

We review the summary dismissal of a post-conviction petition de novo. People v. Simms, 192 Ill.2d 348, 360, 249 Ill.Dec. 654, 736 N.E.2d 1092 (2000).

Section 122-1(c) of the Act sets out a time limitation for post-conviction relief. This section states, in pertinent part:

771 N.E.2d 31

"(c) No proceedings under this Article shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or more than 45 days after the defendant files his or her brief in the appeal of the sentence before the Illinois Supreme Court * * * or 3 years from the date of conviction, whichever is sooner, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence." 725 ILCS 5/122-1(c)(West 1998).

Here, defendant was sentenced on March 24, 1995. His petition for leave to appeal was denied by the supreme court on October 2, 1996. The deadline for filing a timely post-conviction petition under the Act would have been six months later, April 2, 1996. Defendant's petition was tardy by more than five years.

However, defendant...