People v. Lemons

• Decision Date: 25 March 1993
• Docket Number: No. 4-92-0346,4-92-0346
• Parties: , 184 Ill.Dec. 642 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Earnestine LEMONS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1234

613 N.E.2d 1234

242 Ill.App.3d 941, 184 Ill.Dec. 642

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Earnestine LEMONS, Defendant-Appellant.

No. 4-92-0346.

Appellate Court of Illinois Fourth District.

March 25, 1993.

Daniel D. Yuhas, Deputy Defender, Office of the State Appellate Defender, Springfield, Lawrence J. Essig, Asst. Defender, for defendant-appellant.

Charles G. Reynard, State's Atty., McLean County Law & Justice Center, Bloomington, Norbert J. Goetten, Director, State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, Denise M. Ambrose, Staff Atty., for plaintiff-appellee.

Presiding Justice STEIGMANN delivered the opinion of the court:

On March 17, 1992, defendant filed a pro se petition for post-conviction relief, alleging that she was denied effective assistance of counsel at trial. On March 30, 1992, the trial court dismissed defendant's petition as "frivolous and patently without merit," pursuant to section 122-2.1(a)(2) of the Post-Conviction Hearing Act (Act) (Ill.Rev.Stat.1991, ch. 38, par. 122-2.1(a)(2)). Defendant appeals, arguing that the court erred by dismissing her petition.

We affirm.

I. BACKGROUND

In June 1989, the State charged defendant with four counts of first degree murder (Ill.Rev.Stat.1989, ch. 38, par. 9-1(a)(1)). In January 1990, defendant entered a negotiated guilty plea to second degree murder (Ill.Rev.Stat.1989, ch. 38, par. 9-2(a)(2)). In March 1990, the trial court sentenced her to 15 years in prison. No direct appeal was taken.

On March 17, 1992, defendant filed a pro se petition for post-conviction relief, which alleged that she was denied effective assistance of counsel for the following reasons: (1) defense counsel "coerced defendant into accepting a fifteen year sentence where the possibility existed that she could of [sic ] received a lesser sentence if taken to trial"; and (2) defense counsel "acknowledged the fact that defendant was indigent, but failed to give the defendant-petitioner any copies of the 'report of proceeding or common law records['] to perfect an appeal to the Illinois Appellate Court or Supreme Court."

In its March 30, 1992, order of dismissal, the trial court wrote that defendant's petition "sets out no facts supporting a claim of coercion." The court also noted that it had fully admonished defendant under Supreme Court Rule 402 (134 Ill.2d R. 402) when she pleaded guilty, and that defendant's "guilty plea was found to be entirely voluntary." Regarding defendant's second claim, the court noted that defendant "was fully advised following her sentencing hearing * * * about how to perfect her appeal rights and nothing is shown that she ever requested any assistance of her trial counsel regarding any appeal."

II. ANALYSIS

A. Proceedings Under the Post-Conviction Hearing Act

In People v. Eddmonds (1991), 143 Ill.2d 501, 510, 161 Ill.Dec. 306, 309-10, 578 N.E.2d 952, 955-56, the Illinois Supreme Court discussed the Act as follows:

"The * * * Act provides a remedy to criminal defendants who claim that substantial violations of their constitutional rights occurred in their trial. [Citation.] A post-conviction proceeding is not an appeal per se, but a collateral attack upon a final judgment. [Citation.] The purpose of a post-conviction proceeding is not to determine guilt or innocence, but to inquire into constitutional issues which have not been, and could not have been, previously adjudicated. [Citation.] In a post-conviction proceeding, the petitioner bears the burden of proving that a substantial constitutional violation occurred at trial."

In 1983, the General Assembly enacted Public Act 83-942 (Pub. Act 83-942, eff. Nov. 23, 1983 (1983 Ill.Laws 6200, 6201)), which amended the Act by adding section 122-2.1 (Ill.Rev.Stat.1989, ch. 38, par. 122-2.1). That new section authorized a trial court to dismiss a post-conviction petition that the court determined was frivolous or patently without merit, thereby avoiding the expense, bother, and delay that the processing of deficient petitions had caused the courts before the enactment of Public Act 83-942. By enacting section 122-2.1, the legislature clearly intended to expedite trial court handling of deficient post-conviction petitions.

In People v. Dredge (1986), 148 Ill.App.3d 911, 912-13, 102 Ill.Dec. 552, 553, 500 N.E.2d 445, 446, this court considered the 1983 amendment to the Act and determined that the Act now provided a three-stage process for adjudication of petitions for post-conviction relief. At the first stage, the trial court should not decide the petition on the merits; instead, without input from the State or further pleadings from the defendant, the court should simply determine if the petition is frivolous or patently without merit. (Dredge, 148 Ill.App.3d at 912, 102 Ill.Dec. at 553, 500 N.E.2d at 446.) "[I]n order to withstand dismissal at the first stage of post-conviction proceedings, a petition for post-conviction relief need only contain a simple statement which presents the gist of a claim for relief which is meritorious when considered in view of the record of the trial court proceedings." Dredge, 148 Ill.App.3d at 913, 102 Ill.Dec. at 553, 500 N.E.2d at 446.

If the court determines at this first stage that the petition is not frivolous or patently without merit, then at the second stage the court may appoint counsel to represent an indigent defendant, and counsel will have the opportunity to amend the post-conviction petition. The State may then move to dismiss the petition. The third and final stage is an evidentiary hearing if the court has not dismissed the petition on the State's motion. Dredge, 148 Ill.App.3d at 913, 102 Ill.Dec. at 553, 500 N.E.2d at 446.

In People v. Porter (1988), 122 Ill.2d 64, 74, 118 Ill.Dec. 465, 468, 521 N.E.2d 1158, 1161, the supreme court discussed section 122-2.1 of the Act and added the following regarding the petitioner's burden:

"[T]he [post-conviction] petitioner must set forth the specific manner in which his rights were violated. (Ill.Rev.Stat.1983, ch. 38, par. 122-2.1.) The petitioner does not have to construct legal arguments or cite to legal authority. Once the petitioner sets out allegations demonstrating a meritorious constitutional claim, he is entitled to have counsel represent him on the petition. 'While it is obvious that counsel should be better able to more artfully draft a petition that an indigent petitioner unschooled in legal drafting, it is certainly not clear that an indigent petitioner could not present the gist of his claim so that the trial court could make an initial determination as to whether * * * the claim is frivolous.' People v. Baugh (1985), 132 Ill.App.3d 713, 717 ."

B. Defendant's Claim That Her Counsel Coerced Her Guilty Plea

Citing Dredge, defendant argues that her pro se petition contained the gist of a meritorious claim and that "evidence of coercion could only be properly considered with the appointment of counsel and investigation of the nature of the advice and tactics employed by trial counsel when advising the defendant to plead guilty." Defendant also cites People v. Von Perbandt (1991), 221 Ill.App.3d 951, 956, 164 Ill.Dec. 536, 539, 583 N.E.2d 90, 93, for the proposition that only a "minimal amount of specificity is required" for pro se petitions. Defendant claims that her petition complied with the standards of Dredge and Von Perbandt. We disagree.

The Act requires that the allegations in the petition for post-conviction relief be supported by affidavit, the record, or other evidence. (Ill.Rev.Stat.1991, ch. 38, pars. 122-1, 122-2.) However, the sole extent of defendant's allegations regarding her coercion claim is that her trial counsel "coerced defendant into accepting a fifteen year sentence where the possibility existed that she could of [sic ] received a lesser sentence if taken to trial." In People v. Williams (1972), 52 Ill.2d 466, 468, 288 N.E.2d 353, 354, the supreme court rejected a similar argument by a pro se petitioner and noted that the Act requires that a petition be supported by affidavits, records, or other evidence supporting its allegations. Significantly, the Williams court wrote that "[n]o allegation as to the time, place, what was said or other circumstances of the claimed coercion was made by affidavit or otherwise." Williams, 52 Ill.2d at 469, 288 N.E.2d at 354-55.

The present case is no different than Williams. This record does not contain any statement by defendant of how, when, or where her trial counsel coerced her into pleading guilty. If she was truly coerced, we fail to understand why she cannot supply this information. It is just not that tricky or difficult for her to provide the particulars underlying the allegation of coercion in her petition. We will not permit defendant to keep that information secret, only to reveal it (assuming it exists) in later, amended petitions or at the hearings thereon.

The supreme court's discussion in Porter that we earlier quoted regarding the petitioner's burden makes clear that the supreme court's requirements for what a valid post-conviction petition must contain, as stated in Williams, remain valid even after Dredge. Similarly, in People v. Lawrence (1991), 211 Ill.App.3d 135, 138, 155 Ill.Dec. 564, 566, 569 N.E.2d 1175, 1177, this court acknowledged as much when it affirmed a trial court's dismissal of a post-conviction petition as frivolous and patently without merit and wrote the following:

" [T]he allegations of a post-conviction petition must be supported by the record in the case or by accompanying affidavits. [Citations.] The defendant's petition was not supported by the record in the case or by an accompanying affidavit. For this reason alone, the trial court properly dismissed the defendant's post-conviction petition."

We note that the supreme court in People v. Johnson (1993), 154 Ill.2d 227, 239, 182 Ill.Dec. 1, 7, 609 N.E.2d 304,...