People v. Kirkpatrick
| Decision Date | 17 April 2012 |
| Docket Number | No. 2–10–0898.,2–10–0898. |
| Citation | 2012 IL App (2d) 100898,360 Ill.Dec. 417,968 N.E.2d 1170 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Ryan C. KIRKPATRICK, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Alan D. Goldberg, Deputy Defender, Jennifer L. Bontrager, Office of the State Appellate Defender, Chicago, for Ryan C. Kirkpatrick.
Louis A. Bianchi, State's Attorney, Woodstock (Lawrence M. Bauer, Deputy Director, Edward R. Psenicka, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
[360 Ill.Dec. 418]¶ 1 Defendant, Ryan C. Kirkpatrick, appeals the trial court's second-stage dismissal of his petition filed under the Post–Conviction Hearing Act (the Act) (725 ILCS 5/art. 122 (West 2008)). Defendant contends, inter alia, that he received the unreasonable assistance of postconviction counsel. The State counters that (1) we lack jurisdiction or (2) we should dismiss this appeal based on defects in the pleading; or (3) we should affirm because defendant received the reasonable assistance of counsel. We affirm.
¶ 2 In 2006, defendant was indicted on two counts of threatening a public official (720 ILCS 5/12–9(a)(1)(i) (West 2004)). Following a jury trial, defendant was convicted, and he was sentenced to 14 years' imprisonment. Defendant's conviction was affirmed on direct appeal. People v. Kirkpatrick, No. 2–07–0323, 233 Ill.2d 581, 335 Ill.Dec. 641, 919 N.E.2d 360 (2009) (unpublished order under Supreme Court Rule 23).
¶ 3 On June 15, 2009, defendant filed a pro se postconviction petition alleging multiple claims, including a claim that his trial counsel was unable to provide effective assistance because the trial court and the prison failed to allow communication with counsel and to allow access to discovery materials. Defendant attached various documents to the petition. On January 26, 2010, defendant filed a motion to appoint a special public defender due to a conflict of interest. On March 5, 2010, the trial court conducted a hearing. The trial court informed defendant that his petition had proceeded to the second stage and inquired “on the record” what his “position was with respect to [his] representation.” Defendant responded that he wanted his trial counsel to represent him. The trial court asked, “So you're not alleging any conflict with him at all,” and defendant replied, “No.” The trial court granted defendant's request.
¶ 4 On August 13, 2010, counsel filed an amended petition for postconviction relief. Counsel alleged that (1) defendant was prejudiced by the length of time that elapsed between the time the act occurred and the time of the filing of the indictment; (2) the prosecutor failed to disclose his submission for a judgeship, which resulted in a conflict of interest involved in the prosecution of this case; (3) a prosecutor erred on the record when he stated that various other crimes could not be charged as the statute of limitations had run on the crimes; and (4) he was given insufficient access to his discovery documents to assist in his defense. Counsel also filed a “Certificate of Counsel Pursuant to Illinois Supreme Court Rule 604(d),” in which he stated that he attempted to consult with defendant, reviewed the court file and record of proceedings, and made any necessary amendments.
¶ 5 On August 24, 2010, the State filed a motion to dismiss, and on August 25, 2010, it filed an amended dismissal motion. The State argued that every issue defendant raised could have been raised on direct appeal, and therefore the issues were waived. The State also argued that dismissal would be proper because the petition failed to “clearly set forth the respects” in which his constitutional rights were violated, as required by section 122–2 of the Act (725 ILCS 5/122–2 (West 2008)). The State further requested dismissal based on defendant's failure to attach to his petition affidavits, records, or other evidence supporting his allegations, as required by section 122–2 of the Act.
¶ 6 On August 31, 2010, the trial court conducted a hearing on defendant's amended postconviction petition and the State's dismissal motion. At the hearing, postconviction counsel informed the trial court that he had spoken with defendant a couple of times and had written communication with him. Counsel further informed the trial court that he had reviewed defendant's postconviction petition and discussed with defendant the petition and changes to the petition. Following argument of the parties, the trial court granted the State's motion to dismiss. In doing so, the trial court found that, despite the lapse of time between the event and the indictment, the State did not violate the statute of limitations and the lapse of time did not constitute a violation of defendant's rights. With respect to the second issue, the trial court found it waived because defendant could have raised the issue on direct appeal. The trial court found that the third issue had no constitutional merit. With respect to the fourth issue, the trial court indicated that it followed the supreme court's rules concerning discovery. In granting the State's motion to dismiss, the trial court concluded that defendant failed to raise any issue that amounted to a constitutional violation of his rights and that he had waived many of the issues, which could have been raised on direct appeal. Defendant filed a timely notice of appeal.
[360 Ill.Dec. 420]¶ 7 Defendant argues that his counsel provided unreasonable assistance by failing to file a proper certificate under Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984) and by failing to make necessary amendments to the petition or provide supporting affidavits. The State first argues that we lack jurisdiction because the petition was not verified by a notarized affidavit. Secondly and alternatively, the State asks that we affirm the dismissal and find that counsel did not provide unreasonable assistance.
¶ 8 Initially, we reject the State's claim that we lack jurisdiction over the appeal because the postconviction petition was not verified by a notarized affidavit. See People v. Nitz, 2011 IL App (2d) 100031, ¶ 12, 355 Ill.Dec. 525, 959 N.E.2d 1258 ().
¶ 9 Turning to the merits, defendant argues that his counsel provided unreasonable assistance by failing to file a proper certificate under Rule 651(c) and by failing to make necessary amendments to the petition or provide supporting affidavits. The State asks that we affirm the dismissal and find that counsel did not provide unreasonable assistance.
¶ 10 The Act provides a method by which persons under criminal sentence can assert that their convictions were the result of a substantial denial of their rights under the United States or the Illinois Constitution or both. 725 ILCS 5/122–1(a)(1) (West 2008); People v. Ligon, 239 Ill.2d 94, 103, 346 Ill.Dec. 463, 940 N.E.2d 1067 (2010) (citing People v. Petrenko, 237 Ill.2d 490, 495–96, 342 Ill.Dec. 15, 931 N.E.2d 1198 (2010)). A postconviction proceeding is a collateral attack on the prior conviction or sentence that does not relitigate a defendant's innocence or guilt. Ligon, 239 Ill.2d at 103, 346 Ill.Dec. 463, 940 N.E.2d 1067 (citing People v. Evans, 186 Ill.2d 83, 89, 237 Ill.Dec. 118, 708 N.E.2d 1158 (1999)).
¶ 11 Proceedings under the Act are commenced by the filing of a petition in the circuit court in which the original proceeding took place. People v. Hansen, 2011 IL App (2d) 081226, ¶ 18, 351 Ill.Dec. 709, 952 N.E.2d 82 (citing People v. Jones, 211 Ill.2d 140, 144, 284 Ill.Dec. 287, 809 N.E.2d 1233 (2004)). A postconviction proceeding that does not involve the death penalty consists of three stages. At the first stage, the defendant files a petition and the trial court has 90 days in which it may review the petition without the input of any party and summarily dismiss it if the court finds it frivolous or patently without merit. 725 ILCS 5/122–2.1(a)(2) (West 2008); Hansen, 2011 IL App (2d) 081226, ¶ 18, 351 Ill.Dec. 709, 952 N.E.2d 82 (citing Jones, 211 Ill.2d at 144, 284 Ill.Dec. 287, 809 N.E.2d 1233). To survive summary dismissal, the petition must present only the gist of a constitutional claim. People v. Hodges, 234 Ill.2d 1, 9, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009); Hansen, 2011 IL App (2d) 081226, ¶ 18, 351 Ill.Dec. 709, 952 N.E.2d 82 (citing Jones, 211 Ill.2d at 144, 284 Ill.Dec. 287, 809 N.E.2d 1233).
¶ 12 At the second stage, counsel may be appointed for the defendant, if the defendant is indigent. 725 ILCS 5/122–4 (West 2008); People v. Pendleton, 223 Ill.2d 458, 472, 308 Ill.Dec. 434, 861 N.E.2d 999 (2006). After an appointment, Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984) requires counsel: (1) to consult with the defendant by mail or in person; (2) to examine the record of the challenged proceedings; and (3) to make any amendments that are “necessary” to the petition previously filed by the pro se defendant. People v. Perkins, 229 Ill.2d 34, 42, 321 Ill.Dec. 676, 890 N.E.2d 398 (2007).
[360 Ill.Dec. 421] ¶ 13 The Act further provides that, after counsel has made any necessary amendments to the petition, the State may move to dismiss it. Pendleton, 223 Ill.2d at 472, 308 Ill.Dec. 434, 861 N.E.2d 999 (discussing 725 ILCS 5/122–5 (West 2000)); see also Perkins, 229 Ill.2d at 43, 321 Ill.Dec. 676, 890 N.E.2d 398. If the State moves to dismiss, the trial court may hold a dismissal hearing, which is still part of the second stage. People v. Coleman, 183 Ill.2d 366, 380–81, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998). A trial court is foreclosed “from engaging in any fact-finding at a dismissal hearing because all well-pleaded facts are to be taken as true at this point in the proceeding.” Coleman, 183 Ill.2d at 380–81, 233 Ill.Dec. 789, 701 N.E.2d 1063. A court reviewing...
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