People v. Hunter

Decision Date21 September 2007
Docket NumberNo. 1-06-0367.,1-06-0367.
Citation875 N.E.2d 1145
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Solomon HUNTER, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Office of the State Appellate Defender, Chicago (Michael J. Pelletier, Scott F. Main, of counsel), for Appellant.

Cook County State's Attorney, Chicago (Richard A. Devine, James E. Fitzgerald, Alan J. Spellberg, Edward Hunter Olivieri, of counsel), for Appellee.

Justice GALLAGHER delivered the opinion of the court:

Defendant Solomon Hunter appeals from an order of the trial court summarily dismissing his pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2004)). On appeal, defendant contends that: (1) his petition alleged the gist of constitutional claims that his right of confrontation was violated and that his trial counsel was ineffective; and (2) he was improperly assessed fees and costs after his pro se petition was dismissed upon a finding of frivolousness.

Following a bench trial, defendant was found guilty of possession of a controlled substance and sentenced to 16 years' imprisonment. Because the proceedings of the trial are fully set out in our order on direct appeal (People v. Hunter, No. 1-03-2250 (2005) (unpublished order under Supreme Court Rule 23)), we restate only those facts necessary to understand defendant's current appeal.

At around 6:40 p.m. on January 7, 2003, Officer Spain was conducting narcotics surveillance on the 2700 block of West Lexington Street in Chicago. Defendant was standing in the middle of the block on the south side of the street when an individual approached defendant. After the two spoke, defendant accepted money from the individual and relocated to a vacant lot approximately 10 to 12 feet from the sidewalk. He picked up a strip of tape and removed a "small shiny item" from it. Defendant returned to the individual that had given him money and gave the item to him. Officer Spain observed two similar transactions, but did not stop any of the alleged buyers. After observing the third transaction, Spain contacted Officers Town and Chin to detain defendant. Town recovered a strip of tape from the vacant lot and discovered five tinfoil packets attached to it. He then gave the strip of tape to Spain. Officer Spain inventoried the packets, heat sealed the inventory package, and sent it to the crime lab for testing. When asked if he inventoried the items "under Inventory Number 10080323," Spain replied, "[y]es, that's correct."

The parties stipulated that if called to testify, Penny Evans would first testify that she was an expert in forensic chemistry. She would also testify:

"[S]he received the items inventoried under Inventory Number 10080232 in a heat sealed condition. Chain of custody was proper at all times.

Upon receiving the inventory envelope she opened it. Inside it was five tin foil packets. She weighed the contents of the tin foil packets. The total weight was .6 grams. She then separated out of the tin foil packets the contents of [sic] that weighed .1 grams for ascertaining the presence of a controlled substance. She would testify within a reasonable degree of scientific certainty that it tested positive for [h]eroin."

Defendant did not object or show any signs of dissent when the stipulation was made.

The trial court found defendant guilty of possession of a controlled substance with intent to deliver. Prior to sentencing, defendant argued in a pro se motion for a new trial that his defense counsel was ineffective. The trial court denied defendant's motion and sentenced him as a Class X offender to 16 years' imprisonment.

Defendant appealed his convictions and we affirmed the judgment on appeal. Hunter, slip op. at 14-15. Defendant argued, inter alia, that the State failed to establish a reliable chain of custody. However, this court rejected defendant's argument, finding that the stipulation established that the chain of custody was sufficient and that the stipulated evidence sufficiently matched Officer Spain's testimony concerning the evidence. Hunter, slip op. at 9-10. Furthermore, this court found that the discrepancy in the record regarding the inventory numbers between the stipulation and Spain's testimony did not break the chain of custody. Hunter, slip op. at 10.

On November 3, 2005, defendant filed a pro se postconviction petition alleging that he was denied his right to due process and his trial counsel was ineffective for: (1) entering into a stipulation with the State without first seeking input from defendant or discussing the matter with him; (2) stipulating to the chain of custody and failing to raise the issue of the discrepancy of inventory numbers at trial, in a motion for a directed finding, closing argument or posttrial motion; (3) failing to object to the foundation for the chemist's testimony at trial; (4) failing to call a witness, Rhonda Marks, who was willing to give favorable testimony at trial on defendant's behalf; and (5) refusing to file a motion to quash his arrest.

On December 2, 2005, the trial court reviewed the petition and determined that it was frivolous and patently without merit. Among its findings, the trial court found that defendant had not stated any facts as to how he was prejudiced by the stipulation to the chain of custody and trial counsel's failure to object to the foundation of the chemist's testimony. Therefore, his defense counsel was not ineffective under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Furthermore, the trial court found that defense counsel's actions were a matter of trial strategy and would therefore be left undisturbed.

The trial court also entered a second order assessing defendant $90 in fees and costs, finding that his petition was frivolous in that: "1. it lacks an arguable basis in law or in fact; and 2. the claims, defenses, and other legal contentions therein are not warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law."

Defendant timely appeals and first contends that his petition was improperly dismissed because it stated the gist of a constitutional claim.

Defendant argues that because his defense counsel stipulated to the forensic chemist's testimony and the chain of custody for the seized narcotics without discussing it with him, his constitutional right of confrontation was violated. He also argues that he was denied effective assistance of counsel because defense counsel decided to enter into the stipulation without contesting any of the evidence.

At the first stage of postconviction proceedings under the Act, a petition may be dismissed if the trial court determines the defendant's petition is frivolous or is patently without merit. People v. Edwards, 197 Ill.2d 239, 244, 258 Ill.Dec. 753, 757 N.E.2d 442 (2001). A petition is frivolous or patently without merit only if the allegations in the petition, taken as true and liberally construed, fail to present the gist of a constitutional claim. Edwards, 197 Ill.2d at 244, 258 Ill.Dec. 753, 757 N.E.2d 442. Our review of a summary dismissal is de novo. Edwards, 197 Ill.2d at 247, 258 Ill.Dec. 753, 757 N.E.2d 442.

Although there is a presumption against the waiver of constitutional rights, the right of confrontation may be waived. People v. Campbell, 208 Ill.2d 203, 211, 280 Ill.Dec. 684, 802 N.E.2d 1205 (2003). Defense counsel may waive a defendant's sixth amendment right of confrontation by stipulating to the admission of evidence when the decision is a matter of trial tactics or strategy as long as the defendant does not object. People v. Scott, 355 Ill. App.3d 741, 744, 291 Ill.Dec. 726, 824 N.E.2d 302 (2005).

To establish ineffective assistance of counsel, a defendant must show both (1) that counsel's representation fell below an objective standard of reasonableness and (2) that the substandard representation prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Demonstrating prejudice under the second prong requires a showing that there is a reasonable probability that, but for counsel's alleged error, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; People v. Vasquez, 368 Ill.App.3d 241, 255, 305 Ill.Dec. 718, 856 N.E.2d 523 (2006). The decision of whether to object to trial testimony is generally a matter of trial strategy. People v. Evans, 209 Ill.2d 194, 221, 283 Ill. Dec. 651, 808 N.E.2d 939 (2004).

Defendant first argues that his defense counsel never discussed the decision to stipulate to evidence with him and, therefore, he was denied his constitutional right of confrontation. We note that defendant's brief argues both that defense counsel did not seek input from him regarding the stipulation and also that there was an off-the-record disagreement with the decision. However, defendant's postconviction petition only alleges that defense counsel "entered into stipulations with the State without first seeking `any' input from [defendant], or discussing the matter whatsoever with him." Any issue or claim of substantial denial of constitutional rights not raised in the original postconviction petition is deemed waived. See 725 ILCS 5/122-3 (West 2004); People v. Jones, 211 Ill.2d 140, 144-45, 284 Ill.Dec. 287, 809 N.E.2d 1233 (2004). Accordingly, we will only address the allegations raised in defendant's postconviction petition.

Defendant must be admonished about a stipulation and must personally agree to it only when the stipulation includes a statement that the evidence is sufficient to convict the defendant or where the State's entire case is to be presented by stipulation. People v. Phillips, 217 Ill.2d 270, 288, 298 Ill.Dec. 759, 840 N.E.2d 1194 (2005). The...

To continue reading

Request your trial
6 cases
  • People v. Smith
    • United States
    • United States Appellate Court of Illinois
    • 20 Junio 2008
    ...to the $90 filing fee, similar arguments to those of defendant were considered and rejected in Gale, People v. Hunter, 376 Ill.App.3d 639, 314 Ill.Dec. 858, 875 N.E.2d 1145 (2007), and People v. Carter, 377 Ill.App.3d 91, 315 Ill.Dec. 694, 877 N.E.2d 446 In considering the argument that sec......
  • The People Of The State Of Ill. v. Jarrett
    • United States
    • United States Appellate Court of Illinois
    • 13 Abril 2010
    ...694, 877 N.E.2d 446 (2007), appeal denied, 231 Ill.2d 639, 327 Ill.Dec. 700, 902 N.E.2d 1086 (2009); People v. Hunter, 376 Ill.App.3d 639, 648, 314 Ill.Dec. 858, 875 N.E.2d 1145 (2007), appeal denied, 233 Ill.2d 578, 335 Ill.Dec. 640, 919 N.E.2d 359 (2009); People v. Gale, 376 Ill.App.3d 34......
  • People v. Carter
    • United States
    • United States Appellate Court of Illinois
    • 12 Octubre 2007
    ...section 22-105, we find People v. Gale, 376 Ill.App.3d 344, 315 Ill.Dec. 171, 876 N.E.2d 171 (2007), and People v. Hunter, ___ Ill.App.3d ___, 314 Ill.Dec. 858, 875 N.E.2d 1145 (2007), instructive. The instant case challenges the fee assessed against defendant after the court found a succes......
  • People v. Conick
    • United States
    • Illinois Supreme Court
    • 20 Noviembre 2008
    ...of them. See People v. Carter, 377 Ill.App.3d 91, 106, 315 Ill.Dec. 694, 877 N.E.2d 446 (2007); People v. Hunter, 376 Ill.App.3d 639, 648, 314 Ill.Dec. 858, 875 N.E.2d 1145 (2007); People v. Gale, 376 Ill.App.3d 344, 360, 315 Ill.Dec. 171, 876 N.E.2d 171 (2007); see also People v. Anderson,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT