People v. Owens, 69189

• Court: Supreme Court of Illinois
• Citation: 151 Ill.Dec. 522,139 Ill.2d 351,564 N.E.2d 1184
• Docket Number: No. 69189,69189
• Parties: , 151 Ill.Dec. 522 The PEOPLE of the State of Illinois, Appellee, v. Robin Wayne OWENS, Appellant.
• Decision Date: 30 November 1990

Page 1184

564 N.E.2d 1184 139 Ill.2d 351, 151 Ill.Dec. 522 The PEOPLE of the State of Illinois, Appellee,
v.
Robin Wayne OWENS, Appellant. No. 69189. Supreme Court of Illinois. Nov. 30, 1990.

Page 1185

[139 Ill.2d 355] [151 Ill.Dec. 523] Charles M. Schiedel, Deputy Defender, of the Office of the State Appellate Defender, Springfield, for appellant.

Neil F. Hartigan, Atty. Gen., Springfield (Robert J. Ruiz, Sol. Gen., and Terence M. Madsen, Asst. Atty. Gen., Chicago, of counsel), for the People.

Justice WARD delivered the opinion of the court:

The petitioner, Robin Wayne Owens, appeals from an order dismissing his amended petition for post-conviction relief (107 Ill.2d R. 651(a)). Owens was convicted of armed robbery and murder in the circuit court of Will County and was sentenced to death. The convictions and sentence were affirmed on direct appeal to this court. (People v. Owens (1984), 102 Ill.2d 88, 79 Ill.Dec. 663, 464 N.E.2d 261.) (The petitioner had been previously convicted of an unrelated murder and armed robbery in Kankakee County and sentenced to death.)

[139 Ill.2d 356] The petitioner, through retained counsel, filed a petition for post-conviction relief on August 2, 1985. The petitioner's retained counsel was subsequently given leave to withdraw and the Will County public defender

Page 1186

[151 Ill.Dec. 524] was appointed to represent the petitioner in the post-conviction proceedings.

The petitioner's appointed counsel filed an amended petition for post-conviction relief. The amended petition alleged, inter alia, that the petitioner's trial counsel was ineffective in failing to move for a hearing to determine the petitioner's fitness to stand trial, failing to seek a hearing to determine the petitioner's fitness to be sentenced and failing to present evidence of the petitioner's alleged mental retardation in mitigation at the sentencing hearing.

The petitioner's counsel also filed a motion to obtain the petitioner's medical and psychiatric records from the Illinois Department of Corrections. The motion alleged that a question existed as to the petitioner's competence to assist in the post-conviction proceedings. The circuit court granted the motion.

Subsequently, petitioner's counsel filed a motion pursuant to section 104-13 of the Code of Criminal Procedure of 1963 and section 5-2-3 of the Unified Code of Corrections (Ill.Rev.Stat.1987, ch. 38, pars. 104-13, 1005-2-3), seeking appointment of an expert to examine the petitioner to determine his fitness to assist counsel in post-conviction proceedings and his fitness to be executed. The motion alleged that the petitioner's counsel had received reports from the Department of Corrections detailing the petitioner's bizarre behavior and treatment with anti-psychotic medication. The motion also alleged that counsel attempted to interview the petitioner at the Will County jail on November 14, 1988, but that the petitioner was unable to assist his counsel and [139 Ill.2d 357] frequently injected irrelevant, frivolous and often unintelligible matters into the discussion.

The trial court denied the petitioner's motion for a fitness hearing, holding that a hearing to determine fitness to assist counsel is not required in post-conviction proceedings, and that a hearing to determine fitness to be executed was premature since no execution date was set. The trial court also denied the State's motion to dismiss the amended post-conviction petition and set the matter for an evidentiary hearing.

At the evidentiary hearing on the post-conviction petition, the petitioner testified on his own behalf. The petitioner's trial counsel also testified. At the conclusion of the hearing, the trial court denied the petitioner's claim for post-conviction relief. The petitioner appealed to this court (107 Ill.2d R. 651(a)).

The petitioner first claims that the circuit court erred in failing to hold a fitness hearing to determine whether he could meaningfully communicate with and assist his post-conviction counsel. As stated, the petitioner sought the appointment of an expert to determine his fitness under sections 104-13 and 5-2-3. Nothing in those sections requires or permits a hearing to determine whether a petitioner is fit to assist counsel in post-conviction proceedings. Section 104-13 authorizes courts to hold a fitness hearing when a bona fide doubt is raised as to a defendant's fitness to stand trial, plead or be sentenced. (Ill.Rev.Stat.1989, ch. 38, pars. 104-10, 104-13.) A defendant is presumed to be fit and a court may find the defendant unfit only if it concludes that the defendant, because of a mental or physical condition, is unable to understand the nature and purpose of the proceedings against him or to assist in his defense. (Ill.Rev.Stat.1989, ch. 38, par. 104-10.) Section 5-2-3 of the Unified Code authorizes a court to hold a hearing to determine whether a defendant is fit to be executed. A [139 Ill.2d 358] defendant is considered unfit to be executed only if, because of a mental condition, he is unable to understand the nature and purpose of such sentence. (Ill.Rev.Stat.1989, ch. 38, par. 1005-2-3.) The question of a defendant's fitness to be executed may be raised only by filing a motion in the sentencing court.

The Post-Conviction Hearing Act (Ill.Rev.Stat.1987, ch. 38, par. 122-1 et seq.) likewise does not authorize a court to conduct an evidentiary hearing to determine whether a post-conviction petitioner is mentally fit to assist post-conviction counsel. The petitioner argues, however, that the Post-Conviction Hearing Act does provide for the appointment of counsel to indigent petitioners in post-conviction proceedings.

Page 1187

[151 Ill.Dec. 525] (Ill.Rev.Stat.1987, ch. 38, par. 122-4.) He argues that a petitioner must be able to meaningfully consult with such appointed counsel and that a petitioner who is mentally incompetent cannot engage in such meaningful consultation with counsel. He claims that competence to meaningfully consult with post-conviction counsel is required by Supreme Court Rule 651(c) and is necessary to satisfy the eighth amendment and the due process clause.

We first consider the petitioner's statutory claim. The Post-Conviction Hearing Act provides for the appointment of counsel to indigent petitioners in post-conviction proceedings, if the original petition is determined to be nonfrivolous. (Ill.Rev.Stat.1987, ch. 38, par. 122-4.) The Act provides for the assistance of counsel because the legislature anticipated that most of the petitions under the Act would be filed pro se by prisoners who did not have the aid of counsel in their preparation. To ensure that the complaints of a prisoner might be adequately presented, the statute contemplates that the attorney appointed to represent an indigent petitioner would consult with him either by mail or in person, ascertain his alleged grievances, examine the record of the [139 Ill.2d 359] proceedings at the trial and then amend the pro se petition so that it would adequately present the prisoner's constitutional contentions. The Act cannot serve its purpose properly unless the attorney appointed to represent an indigent petitioner ascertains the basis of his complaints, shapes those complaints into appropriate legal form and presents them to the court. People v. Slaughter (1968), 39 Ill.2d 278, 285, 235 N.E.2d 566.

To that end, Supreme Court Rule 651(c) (107 Ill.2d R. 651(c)), which governs appeals from post-conviction proceedings, requires that the record on appeal disclose that appointed counsel in the trial court took the steps necessary to assure adequate representation of the petitioner's claims. Specifically, Rule 651(c) requires the record to disclose that appointed counsel at the trial level in a post-conviction proceeding: (1) consulted with the petitioner to ascertain his contention of deprivations of constitutional rights, (2) examined the record of the proceeding at trial, and (3) made any amendments to the pro se petition necessary for an adequate presentation of the petitioner's claims. 107 Ill.2d R. 651(c).

Section 122-4 of the Code of Criminal Procedure (Ill.Rev.Stat.1987, ch. 38, par. 122-4) and Supreme Court Rule 651 together ensure that post-conviction petitioners in this State receive a reasonable level of assistance by counsel in post-conviction proceedings. These provisions contemplate that counsel appointed to represent indigent post-conviction petitioners will consult with the petitioner to ascertain the basis of his complaints. Our court has held that Rule 651(c) is not satisfied where counsel does not confer or communicate with the petitioner to ascertain his contentions of constitutional deprivations. (See People v. Wales (1970), 46 Ill.2d 79, 262 N.E.2d 926; People v. Garrison (1969), 43 Ill.2d 121, 251 N.E.2d 200; People v. Seidler (1974), 18 Ill.App.3d 705, 310 N.E.2d 421.) We likewise must conclude that the rule is not satisfied where appointed counsel cannot...