People v. Jones
| Citation | 2011 IL App (1st) 092529,955 N.E.2d 1200,353 Ill.Dec. 389 |
| Decision Date | 30 August 2011 |
| Docket Number | No. 1–09–2529.,1–09–2529. |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Lorenzo JONES, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Sean Collins-Stapleton, Assistant Appellate Defender, Office of the State Appellate Defender, for Petitioner–Appellant.Anita Alvarez, State's Attorney (Alan J. Spellberg, Kathleen Warnick, Adam W. Delderfield, Assistant State's Attorneys, of counsel), for Respondent–Appellee.
¶ 1 Defendant Lorenzo Jones appeals from the second-stage dismissal of his petition for relief under the Post–Conviction Hearing Act (Act) (725 ILCS 5/122–1 et seq. (West 2002)). The defendant contends postconviction counsel failed to comply with Illinois Supreme Court Rule 651(c) (eff.Dec.1, 1984). He also contends his petition raised a substantial question regarding appellate counsel's performance when counsel failed to raise on direct appeal prosecutorial misconduct and trial counsel's deficient performance based on his failure to object to certain testimony and the State's closing argument. Appellate counsel, instead, filed a motion to withdraw, with a supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which we granted. People v. Jones, No. 1–99–0163, 317 Ill.App.3d 1157, 270 Ill.Dec. 663, 783 N.E.2d 238 (2000) (unpublished order under Supreme Court Rule 23). On our de novo review of the instant appeal, we affirm.
¶ 3 At the jury trial, the evidence established that the defendant fatally shot Jose Oquendo and fled to Mexico in the deceased's van. We quote from our original decision affirming the defendant's conviction and sentence.
¶ 4 We add the following to give context to the defendant's ineffectiveness of counsel claims. Maria Oquendo, the deceased's widow, described her family including the children's names and ages, and identified a photograph depicting the deceased with their youngest child. She confirmed the deceased and the defendant were close friends. The defendant spent time at the Oquendo home and played with the Oquendo children. The men played cards on a monthly basis. The State elicited testimony from Maria regarding the deceased's last day. When the deceased left for work, he told Maria that he loved her. Later that day, she received a pager message that, when turned upside down, resembled the Spanish word for “kiss.” According to Maria, the deceased paged her during the day because the family did not have a phone.
¶ 5 The State published the defendant's inculpatory statements that he shot the deceased in the back of the head and drove to Mexico in the deceased's van.
¶ 6 The defendant testified on his own behalf. He claimed the deceased threatened to kill him over the gambling debt, which prompted him to bring a gun to work. The defendant explained that after pointing the gun at the victim's head, he changed his mind about hurting his friend, but the gun accidently fired. He denied pulling the trigger.
¶ 7 During its opening closing argument, the State argued that the deceased's death was no accident and the defendant should receive no sympathy.
¶ 8 The defense argued to the jury that the gun went off accidently and that the defendant would have to live the rest of his life with the knowledge he was responsible for his friend's accidental death. In its rebuttal, the State dismissed the defendant's assertion that the shooting was an accident and asked the jury to hold the defendant responsible for his actions. Ultimately, the jury convicted the defendant of first degree murder and of possession of a stolen motor vehicle.
¶ 9 On direct appeal, appellate counsel filed an Anders motion. The defendant filed a response in which he contended “that the prosecutor's comments during closing arguments denied him a fair trial.” Jones, order at 1. We undertook an independent review of the record with the respective filings by appellate counsel and the defendant in mind. We examined the defendant's unfair trial claim under a plain error analysis. We concluded plain error relief was not warranted because “the evidence was not closely balanced nor was the error of such magnitude to deny defendant a fair trial.” Jones, order at 4. We granted counsel's motion to withdraw. Jones, order at 5.
¶ 10 In 2002, the defendant filed a pro se petition for postconviction relief alleging that he was denied effective assistance of trial counsel by counsel's failure to file a motion to suppress evidence and counsel's failure to object to the State's closing argument. The petition also alleged ineffective assistance of appellate counsel when the State's misconduct was not challenged on direct appeal.
¶ 11 The trial court summarily dismissed the petition as untimely. This court reversed, and remanded for second-stage proceedings because “a circuit court may not summarily dismiss a post-conviction petition solely on the basis that it was not filed within the time limits of section 122–1(c) of the Post–Conviction Hearing Act.” People v. Jones, No. 1–02–2435, order at 1, 347 Ill.App.3d 1108, 310 Ill.Dec. 806, 867 N.E.2d 119 (2004) (unpublished order under Supreme Court Rule 23) (citing People v. Boclair, 202 Ill.2d 89, 99, 273 Ill.Dec. 560, 789 N.E.2d 734 (2002)).
¶ 12 In October 2005, the defendant filed a pro se amendment to his 2002 postconviction petition alleging the State sought to inflame and prejudice the jury against the defendant, which denied him a fair trial. Specifically, the defendant highlighted comments regarding the deceased's family, including the ages of his children, as well as the prosecutor's statement that the trial was the day for the victim's family to receive justice. The petition alleged trial counsel failed to file a motion to suppress, the trial court erred by overruling defense objections to certain testimony, and appellate counsel was ineffective when counsel failed to raise these trial errors on appeal.
¶ 13 The record indicates the defendant filed a pro se amended postconviction petition in November 2005 alleging the trial court erred when, inter alia, it permitted the State to make comments that inflamed the jury's passions. The petition also claimed trial counsel was ineffective when, among other errors, he did not object to certain testimony; the petition claimed appellate counsel was ineffective when counsel failed to raise these trial errors on direct appeal.
¶ 14 The defendant filed two more supplemental pro se postconviction petitions, in August and September 2006. These petitions realleged the same claims from his earlier petitions.
¶ 15 In December 2008, counsel filed a certificate pursuant to Supreme Court Rule 651(c), showing that he had consulted with the defendant and reviewed the trial record. Counsel also asserted no amendments were necessary because the original pro se petition filed in February 2002 and the amended pro se petition filed in October 2005 adequately set forth the defendant's claims. The State filed a motion to dismiss, which the trial court granted. The defendant appealed.
¶ 17 The defendant raises two issues on appeal. He contends postconviction counsel failed to comply with Rule 651(c) and he contends his postconviction petitions raised a substantial question of ineffective assistance of counsel.
¶ 19 We first consider the defendant's claim that postconviction counsel failed to comply with Rule 651(c) because, according to his brief, counsel failed “to examine three pro se amended petitions filed during the proceedings.” Specifically, he contends counsel did not examine the pro se petitions filed in November 2005, August 2006, and September 2006. Our review of compliance with a supreme court rule is de novo, which is also the standard to review a second-stage dismissal of a postconviction petition. People v. Suarez, 224 Ill.2d 37, 41–42, 308 Ill.Dec. 774, 862 N.E.2d 977 (2007).
¶ 20 Illinois Supreme Court Rule 651(c) (eff.Dec.1, 1984) imposes three duties on appointed postconviction counsel. Pursuant to the rule, the record or the filed certificate must “disclose that post-conviction trial counsel: (1) consulted with petitioner to ascertain his contentions of constitutional deprivations; (2) examined the record of the proceedings...
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