People v. Hanks

• Decision Date: 27 November 2002
• Docket Number: No. 1-00-2519, No. 1-00-3854.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Edward HANKS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

781 N.E.2d 601

335 Ill. App.3d 894

269 Ill.Dec. 804

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Edward HANKS, Defendant-Appellant.

Nos. 1-00-2519, 1-00-3854.

Appellate Court of Illinois, First District.

November 27, 2002.

Michael J. Pelletier and Jennifer Bonjean, both of State Appellate Defender's Office, of Chicago, for appellant.

Richard A. Devine, State's Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, Alan Spellberg, and William L. Toffenetti, Assistant State's Attorneys, of counsel), for the People.

Justice KARNEZIS delivered the opinion of the court:

Petitioner Edward Hanks appeals the circuit court's summary dismissal of his pro se petitions for relief pursuant to the Post-Conviction Hearing Act (hereinafter the Act) (725 ILCS 5/122-1 et seq. (West 2000)). The circuit court dismissed petitioner's initial and successive petitions after finding the issues raised therein to be frivolous and patently without merit.

Petitioner was convicted of aggravated criminal sexual assault and armed robbery following a jury trial. The trial court sentenced petitioner to extended terms of 60 years' imprisonment for aggravated criminal sexual assault and 40 years for armed robbery, to be served consecutively. The evidence adduced at trial was set forth by this court in People v. Hanks, 307 Ill.App.3d 1069, 260 Ill.Dec. 287, 760 N.E.2d 1060 (1999) (unpublished order pursuant to Supreme Court Rule 23). Therefore, we will discuss only those facts relevant to the resolution of this appeal. On December 9, 1992, Felicia S. left her Chicago home to go to work. While walking on North Lawler Avenue, Felicia S. was approached from behind by a man who put a handgun to her head and announced, "This is a stickup, bitch." He then forced her down an alley and into a garage where he tied her up and pushed pills into her mouth, which he said would relax her. Her clothes were removed and she was sexually assaulted. Several dollars were also taken from her pocket before the attacker fled. After freeing herself from the bindings, Felicia phoned the police and was taken to the hospital. A police investigation led to defendant's arrest. Felicia subsequently identified defendant in a lineup and at trial. In addition, evidence taken from the victim at the hospital and from her clothing was consistent with defendant's DNA pattern. A jury convicted defendant of aggravated criminal sexual assault and armed robbery on March 27, 1996, and the court sentenced him to consecutive, extended-term sentences of 60 years and 40 years, respectively. Petitioner appealed from that judgment and we affirmed. Hanks, (unpublished order pursuant to Supreme Court Rule 23). On February 2, 2000, the Illinois Supreme Court denied petitioner's petition for leave to appeal. People v. Hanks, 187 Ill.2d 579, 244 Ill.Dec. 188, 724 N.E.2d 1272 (2000).

On March 28, 2000, petitioner filed a pro se petition alleging numerous deprivations of his constitutional rights. The trial court summarily dismissed the petition on June 2, 2000, pursuant to section 122-2.1 of the Post-Conviction Hearing Act (725 ILCS 5/122-2.1 (West 2000)), after concluding that the issues raised were patently without merit.

Petitioner filed a second pro se petition for postconviction relief on September 6, 2000, arguing that the consecutive, extended-term sentences imposed were unconstitutional in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The trial court summarily dismissed this petition on October 19, 2000. It is from the orders dismissing petitioner's postconviction petitions that he now appeals.

Petitioner now argues that: (1) the postconviction court erred in summarily dismissing his pro se petition where it included a nonfrivolous claim of the denial of a fair and impartial trial in that a juror had previously worked with defendant in the housekeeping department of the Hyatt Regency O'Hare Hotel; (2) the postconviction court erred in summarily dismissing his pro se petition where it included a nonfrivolous claim that appellate counsel was ineffective for failing to raise the issue that petitioner was denied a fair and impartial trial on appeal; (3) the consecutive, extended-term sentences imposed are unconstitutional under the United States Supreme Court ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (4) one of his extended-term sentences must be vacated as the trial court imposed two extended-term sentences based on the same aggravating factor, thereby violating the principles against double enhancement; and (5) the enactment of Public Act 83-942 (Pub. Act 83-942, eff. November 23, 1983), which amended the Act to permit the dismissal of certain petitions prior to the appointment of counsel, violated the single subject rule of the Illinois Constitution. We remand for further proceedings.

The Act allows a criminal defendant a procedure for determining whether he was convicted in substantial violation of his constitutional rights. 725 ILCS 5/122-1(a) (West 2000); People v. Edwards, 197 Ill.2d 239, 243-44, 258 Ill.Dec. 753, 757 N.E.2d 442, 445 (2001). Where the death penalty is not involved, the Act sets forth a three-stage process for adjudicating a defendant's request for collateral relief. People v. Gaultney, 174 Ill.2d 410, 418, 221 Ill.Dec. 195, 675 N.E.2d 102, 108 (1996).

At the first stage, all well-pleaded facts are to be taken as true. 725 ILCS 5/122-2.1(a) (West 2000); People v. Coleman, 183 Ill.2d 366, 385, 233 Ill.Dec. 789, 701 N.E.2d 1063, 1073 (1998). The petitioner must also support his or her allegations by attaching affidavits, record or other evidence to the petition or must state why the same are not attached. 725 ILCS 5/122-2 (2000); People v. Collins, 202 Ill.2d 59, 64-66, 270 Ill.Dec. 1, 782 N.E.2d 195 (2002). A trial court may summarily dismiss a petition at the first stage as frivolous and patently without merit only if the allegations, taken as true, fail to present a "`gist of a constitutional claim.'" Edwards, 197 Ill.2d at 244, 258 Ill.Dec. 753, 757 N.E.2d 442, quoting Gaultney, 174 Ill.2d at 418, 221 Ill.Dec. 195, 675 N.E.2d 102. To establish a gist of a constitutional claim, a defendant must only present, "`a limited amount of detail.'" Edwards, 197 Ill.2d at 244, 258 Ill.Dec. 753, 757 N.E.2d 442 quoting Gaultney, 174 Ill.2d at 418, 221 Ill.Dec. 195, 675 N.E.2d 102. However, the petition must clearly identify the alleged constitutional violations. Collins, 202 Ill.2d at 64-66, 270 Ill. Dec. 1, 782 N.E.2d 195.

It was at the first stage that these petitions were dismissed. Our review of the summary dismissal of a post-conviction petition is de novo. Coleman, 183 Ill.2d at 388-89,

233 Ill.Dec. 789,

701 N.E.2d 1063.

Petitioner first argues that the trial court erred in summarily dismissing his pro se petition and asserts that he stated a "gist" of a meritorious claim when he argued that he was denied a fair and impartial trial and that appellate counsel was ineffective for failing to raise denial of a fair and impartial trial on appeal.

Petitioner claims that he was denied a fair and impartial trial in that juror Alvarez, a woman who served on his jury, had worked during the same time period as petitioner in the housekeeping department of the Hyatt Regency O'Hare Hotel. The denial of his right to a fair trial is made more palpable, petitioner argues, by the fact that he was convicted of raping a guest at the Hyatt Regency O'Hare when both he and Alvarez worked there in 1984. Therefore, petitioner urges that juror Alvarez's ability to serve as a fair and impartial juror was compromised and this issue should have been raised by counsel on direct appeal.

Following petitioner's conviction, but prior to sentencing, defense counsel informed the trial court that petitioner had advised him that juror Alvarez worked with petitioner and petitioner's brother in the housekeeping department at the Hyatt Regency O'Hare. There is no indication as to when petitioner received this information from his brother. The State relayed to the court that petitioner had worked at that hotel in 1984. Petitioner admitted to the trial court that he hadn't "noticed or recognized her until my brother * * * had recognized her and inform [sic] me again of my [sic] recollection." In response, the trial court stated, "[a]ll I can do is go by her answer that she didn't know defendant." The case was then passed. Subsequent to the break, the court was informed that the State and one of its investigators had spoken to juror Alvarez during the break. According to the information relayed to the court, the substance of that interview was that juror Alvarez did not recognize defendant or anyone else in the case. She did not work with defendant and did not know that defendant was the individual who had been arrested for a crime committed at the Hyatt Regency O'Hare. This interview was memorialized in an unsworn report that was tendered to defense counsel, but not to the court. In addition, the State informed the court that during voir dire, the court questioned juror Alvarez with regard to what type of work she did, where she worked and for how long. Juror Alvarez stated that she had worked in the housekeeping department of the Hyatt Regency for 22 years. Also during voir dire, juror Alvarez did not respond when the trial court asked if any of the prospective jurors knew anyone involved in the case, even after defendant introduced himself. She also stated that there was nothing that would prevent her from being a fair and impartial juror.

The State argues that petitioner's argument with respect to juror Alvarez is not supported by an affidavit of his brother, Earl Hanks, who allegedly brought the matter to petitioner's attention at trial. Relying on People v. Collins, 202 Ill.2d 59, 270 Ill.Dec. 1, 782 N.E.2d 195 (2002), the State argues that this omission is fatal to the survival of ...