People v. Newbolds

• Citation: 847 N.E.2d 614
• Decision Date: 20 March 2006
• Docket Number: No. 5-02-0526.,5-02-0526.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony W. NEWBOLDS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

847 N.E.2d 614

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony W. NEWBOLDS, Defendant-Appellant.

No. 5-02-0526.

Appellate Court of Illinois, Fifth District.

March 20, 2006.

COPYRIGHT MATERIAL OMITTED

Daniel D. Yuhas, Deputy Defender, Jacqueline L. Bullard, Assistant Appellate Defender, Office of the State Appellate Defender, Springfield, for Appellant.

Charles Garnati, State's Attorney, Marion; Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Kevin D. Sweeney, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, for Appellee.

Justice WELCH delivered the opinion of the court:

Following a bench trial in the circuit court of Williamson County, the defendant, Anthony W. Newbolds, was convicted of home invasion and, on April 11, 2000, was sentenced to a term of imprisonment of 22 years. His conviction and sentence were affirmed by this court on direct appeal. People v. Newbolds, 325 Ill.App.3d 192, 258 Ill.Dec. 975, 757 N.E.2d 664 (2001). The facts relating to the defendant's crime, conviction, and sentence are set forth therein, and we will not repeat them here. In that appeal, the defendant raised a single issue — the applicability of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to the truth-in-sentencing law.

On May 31, 2002, the defendant, acting pro se, filed the first of two petitions pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2002)). The petition was 72 pages long and raised a myriad of issues. It was subsequently amended, pro se, adding an additional argument.

On July 1, 2002, the circuit court of Williamson County dismissed the petition as frivolous or patently without merit pursuant to section 122-2.1(a)(2) of the Act (725 ILCS 5/122-2.1(a)(2) (West 2002)). The circuit court specifically found that the defendant had not "met his burden of making a substantial showing" of a denial of his constitutional rights and that the issues raised in the petition either had been raised and decided in the defendant's direct appeal, and were therefore res judicata, or could have been raised in the direct appeal but were not, and were therefore waived. After the denial of his motion to reconsider the dismissal of his postconviction petition, the defendant filed a notice of appeal.

While the appeal from the dismissal of his first postconviction petition was pending, the defendant filed, on January 22, 2003, a second pro se postconviction petition asserting, among other things, that the dismissal of the first petition on waiver and res judicata grounds had been improper. This second petition was 152 pages long and, like the first petition, was verified.

On February 5, 2003, the circuit court of Williamson County dismissed the second postconviction petition as frivolous or patently without merit. The circuit court specifically found that the defendant had not "met his burden of making a substantial showing" of a deprivation of his constitutional rights. After the denial of his motion to reconsider, the defendant also appealed the dismissal of his second postconviction petition.

On this court's own motion, the two appeals were consolidated for review. In his brief on appeal, the defendant points out that the second postconviction petition raises no substantive claims independent of those contained in the first petition. Accordingly, the defendant states that on appeal he challenges only the dismissal of the first postconviction petition, urging that both bases for the circuit court's dismissal were erroneous.

On September 30, 2004, we reversed the circuit court's summary dismissal of the defendant's postconviction petition, holding that a summary dismissal on the grounds of res judicata and waiver was not appropriate at the first stage of postconviction proceedings because these grounds for a dismissal are affirmative defenses which, like the ground of untimeliness, are properly left for the second stage of postconviction proceedings. People v. Newbolds, 352 Ill.App.3d 678, 287 Ill.Dec. 903, 816 N.E.2d 1114 (2004). We remanded the cause to the circuit court for further proceedings under the Act.

On June 3, 2005, the Illinois Supreme Court decided People v. Blair, 215 Ill.2d 427, 294 Ill.Dec. 654, 831 N.E.2d 604 (2005), in which it held that section 122-2.1(a)(2) of the Act does allow a summary, first-stage dismissal of a postconviction petition on the grounds of res judicata and/or waiver. The supreme court concluded that, in enacting section 122-2.1(a)(2) of the Act, the legislature had intended that the phrase "frivolous or * * * patently without merit" encompassed res judicata and waiver.

On September 29, 2005, pursuant to its supervisory authority, the Illinois Supreme Court directed us to vacate our previous judgment herein (People v. Newbolds, 362 Ill.App.3d 678, 287 Ill.Dec. 903, 816 N.E.2d 1114 (2004)) and to reconsider the case in light of the supreme court's decision in People v. Blair, 215 Ill.2d 427, 294 Ill.Dec. 654, 831 N.E.2d 604 (2005). Accordingly, we vacated our previous judgment which held that the circuit court could not, at the first stage of postconviction proceedings, dismiss the defendant's postconviction petition on the grounds of res judicata and waiver. We must now examine the allegations of the defendant's petition to determine whether the circuit court's findings that the defendant's claims are barred by res judicata or waiver are correct.

Our review of the circuit court's dismissal of a postconviction petition pursuant to section 122-2.1(a)(2) of the Act is de novo. People v. Edwards, 197 Ill.2d 239, 247, 258 Ill.Dec. 753, 757 N.E.2d 442 (2001). We are free to substitute our own judgment for that of the circuit court in order to formulate the legally correct answer. Edwards, 197 Ill.2d at 247, 258 Ill.Dec. 753, 757 N.E.2d 442.

The purpose of a postconviction proceeding is to permit an inquiry into constitutional issues involved in the original conviction and sentence that were not, and could not have been, adjudicated previously on direct appeal. People v. Harris, 206 Ill.2d 1, 12, 276 Ill.Dec. 419, 794 N.E.2d 314 (2002). Accordingly, in an initial postconviction proceeding, the common law doctrines of res judicata and waiver operate to bar the raising of claims that were or could have been adjudicated on direct appeal. Blair, 215 Ill.2d at 443, 294 Ill.Dec. 654, 831 N.E.2d 604. The doctrine of res judicata bars the consideration of issues that were previously raised and decided on direct appeal. Blair, 215 Ill.2d at 443, 294 Ill.Dec. 654, 831 N.E.2d 604. The doctrine of waiver or forfeiture bars claims that could have been raised on direct appeal but were not. Blair, 215 Ill.2d at 443-44, 294 Ill.Dec. 654, 831 N.E.2d 604. Exceptions to these doctrines may allow otherwise-barred claims to proceed where fundamental fairness so requires, where the alleged forfeiture stems from the incompetence of appellate counsel, or where the facts relating to the claim do not appear on the face of the original appellate record. Blair, 215 Ill.2d at 450-51, 294 Ill.Dec. 654, 831 N.E.2d 604. With respect to this third exception to the waiver rule, it is not so much that the claim could not have been presented or raised by a party on direct appeal, but that such a claim could not have been considered by the reviewing court because the claim's evidentiary basis was de hors the record and a reviewing court may not consider matters not of record. People v. Whitehead, 169 Ill.2d 355, 372, 215 Ill.Dec. 164, 662 N.E.2d 1304 (1996). The exception saves such claims irrespective of whether their supporting facts are available as a practical matter at the time of the direct appeal; if they are not a part of the trial record, they may not be considered by the reviewing court on a direct appeal. Whitehead, 169 Ill.2d at 372, 215 Ill.Dec. 164, 662 N.E.2d 1304.

The defendant challenges the dismissal of only five of the claims contained in his postconviction petition: that he was deprived of a fair trial when he was forced to wear a 50,000-volt electric stun belt at the trial and that trial counsel was ineffective for failing to object to the use of the device, that his 22-year prison sentence was unconstitutionally disproportionate to the 2-year terms received by his codefendants, that the trial court failed to make an inquiry into allegations of trial counsel's ineffectiveness, that trial counsel was ineffective in failing to pursue allegations of improper communication between the prosecutor and a detective during the detective's testimony at the hearing on the motion to quash his arrest, and that his appellate counsel was ineffective for failing to raise any and all of these claims on direct appeal.

Initially, we note that none of the claims raised by the defendant in his postconviction petition were raised on direct appeal. Accordingly, they have not been ruled upon and are not res judicata. To the extent the trial court found that the claims were barred by res judicata, the trial court erred. The question then is whether the claims were waived, or forfeited, by the defendant's failure to raise them on direct appeal.¹ The defendant argues that the claims were not forfeited by his failure to raise them on direct appeal, because they rely on facts outside the record for proof and therefore could not have been raised on direct appeal and/or because the failure to raise them on direct appeal is attributable to appellate counsel's ineffectiveness.

With respect to the first claim — that he was deprived of a fair trial when he was forced to wear a stun belt during the trial and that his trial counsel was ineffective in failing to object — we note that while it is clear from the record on appeal that the trial court permitted the sheriff's department to force the defendant to wear a stun belt during the defendant's bench trial, it is not clear from the record whether the...