People v. Pendleton
| Decision Date | 13 April 2005 |
| Docket Number | No. 2-03-0813.,2-03-0813. |
| Citation | 827 N.E.2d 496,292 Ill.Dec. 967,356 Ill. App.3d 863 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Philbert B. PENDLETON, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
G. Joseph Weller, Deputy Defender, Patrick M. Carmody (Court-appointed), Office of the State Appellate Defender, Elgin, for Philbert B. Pendleton.
John B. Roe, Ogle County State's Attorney, Oregon, Martin P. Moltz, Deputy Director, Joan M. Kripke, State's Attorneys Appellate Prosecutor, Elgin, for the People.
Defendant, Philbert B. Pendleton, appeals the denial of his petition filed pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2002)). On appeal, defendant abandons the arguments raised in the petition and instead argues for the first time that, after he pleaded guilty and was sentenced, the trial court failed to admonish him pursuant to Supreme Court Rule 605(b) ) and that, therefore, he is entitled to a new hearing for proper instructions for withdrawing his guilty plea. Defendant further contends that his post-conviction counsel rendered ineffective assistance for failing to include the admonishment issue in the amended petition. We conclude that defendant waived his admonishment claim pursuant to the recent supreme court case of People v. Jones, 213 Ill.2d 498, 290 Ill.Dec. 519, 821 N.E.2d 1093 (2004), which held that a post-conviction petitioner may not raise an issue for the first time in the appellate court if the issue could have been raised in the postconviction petition. Nevertheless, we reverse the denial of the amended postconviction petition on the grounds that postconviction counsel was ineffective for failing to raise the admonishment issue in the petition and that defendant could not have raised the ineffective assistance claim in the petition. We also remand the cause to the trial court for compliance with Rule 605(b).
On August 31, 2001, defendant pleaded guilty to two counts of home invasion (720 ILCS 5/12-11(a)(2) (West 2000)) and two counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2), (a)(5) (West 2000)). In exchange for the guilty pleas, the State agreed not to charge defendant with an unrelated offense he allegedly committed in 1997. No agreement was reached as to the sentence. Following a sentencing hearing on November 8, 2001, the trial court imposed a 75-year aggregate prison sentence, which comprised consecutive terms of 15 years for the first home invasion count, 30 years for the second home invasion count, and 30 years for one of the aggravated criminal sexual assault counts. Defendant did not file a posttrial motion or a direct appeal.
On October 30, 2002, defendant filed a pro se postconviction petition, and the trial court appointed counsel to represent him. On April 21, 2003, postconviction counsel amended the petition to allege that trial counsel rendered ineffective assistance for (1) failing to move to withdraw the guilty plea, as defendant allegedly requested; (2) failing to provide sufficient information to an expert psychologist who testified for the defense at the sentencing hearing; and (3) allowing defendant to testify at the sentencing hearing that he committed other uncharged criminal offenses. Neither the original petition nor the amended petition raised the admonishment issue.
The trial court docketed the petition for proceedings under sections 122-4 through 122-6 of the Act (725 ILCS 5/122-4 through 122-6 (West 2002)). On June 16, 2003, the trial court denied the petition, and defendant's timely appeal followed.
Defendant argues for the first time on appeal that the trial court failed to admonish him properly pursuant to Rule 605(b) and that, therefore, he is entitled to a new hearing for proper instructions for withdrawing his guilty plea or to a "full blown" hearing on his post-conviction petition. The State responds that defendant waived the issue by failing to raise it in a direct appeal or in the post-conviction petition. Defendant attempts to rebut the waiver argument by replying that his post-conviction counsel was ineffective for failing to raise the issue in the amended petition.
The Act provides that a defendant may challenge his conviction by alleging "that in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both." 725 ILCS 5/122-1(a) (West 2002); see People v. Tenner, 175 Ill.2d 372, 378, 222 Ill.Dec. 325, 677 N.E.2d 859 (1997). A petition filed under the Act must "clearly set forth the respects in which petitioner's constitutional rights were violated." 725 ILCS 5/122-2 (West 2002). The petition shall have attached, "affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." 725 ILCS 5/122-2 (West 2002); see People v. Collins, 202 Ill.2d 59, 66, 270 Ill.Dec. 1, 782 N.E.2d 195 (2002). A postconviction proceeding is a collateral proceeding, not an appeal from the underlying judgment. People v. Evans, 186 Ill.2d 83, 89, 237 Ill.Dec. 118, 708 N.E.2d 1158 (1999).
In a case not involving the death penalty, the Act establishes a three-stage process for adjudicating a petition for postconviction relief. People v. Gaultney, 174 Ill.2d 410, 418, 221 Ill.Dec. 195, 675 N.E.2d 102 (1996). At the first stage of a postconviction proceeding, the trial court determines whether the petition alleges a constitutional infirmity that, if proven, would entitle the defendant to relief under the Act. People v. Coleman, 183 Ill.2d 366, 380, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998). The first stage presents a pleading question. Unless positively rebutted by the record, all well-pleaded facts are taken as true at this stage, and the trial court's determination is subject to de novo review. Coleman, 183 Ill.2d at 385, 388-89, 233 Ill.Dec. 789, 701 N.E.2d 1063.
A pro se postconviction petition is considered frivolous or patently without merit only if the allegations in the petition, taken as true and liberally construed, fail to present the "gist of a constitutional claim." Gaultney, 174 Ill.2d at 418,221 Ill.Dec. 195,675 N.E.2d 102, citing People v. Porter, 122 Ill.2d 64, 74, 118 Ill.Dec. 465, 521 N.E.2d 1158 (1988). The "gist" standard is "a low threshold." Gaultney, 174 Ill.2d at 418,221 Ill.Dec. 195,675 N.E.2d 102. To set forth the "gist" of a constitutional claim, the post-conviction petition "need only present a limited amount of detail" (Gaultney, 174 Ill.2d at 418,221 Ill.Dec. 195,675 N.E.2d 102) and hence need not set forth the claim in its entirety. Further, the petition need not include "legal arguments or [citations] to legal authority." Gaultney, 174 Ill.2d at 418,221 Ill.Dec. 195,675 N.E.2d 102.
If the petition is not dismissed and survives the first stage of the postconviction process, then subsection (b) of section 122-2.1 of the Act provides that "the court shall order the petition to be docketed for further consideration in accordance with Sections 122-4 through 122-6." 725 ILCS 5/122-2.1(b) (West 2002). At the second stage of the postconviction process, the State is required to either answer the pleading or move to dismiss. 725 ILCS 5/122-5 (West 2002). If at the second stage the State files a motion to dismiss, the trial court must rule on the legal sufficiency of the defendant's allegations, taking all well-pleaded facts as true. People v. Ward, 187 Ill.2d 249, 255, 240 Ill.Dec. 636, 718 N.E.2d 117 (1999). If at the second stage a substantial showing of a constitutional violation is established, the petition is advanced to the third stage for an evidentiary hearing. 725 ILCS 5/122-6 (West 2002); Gaultney, 174 Ill.2d at 418, 221 Ill.Dec. 195, 675 N.E.2d 102.
Section 122-3 of the Act, however, contemplates the filing of only one postconviction petition. People v. Erickson, 183 Ill.2d 213, 222-23, 233 Ill.Dec. 319, 700 N.E.2d 1027 (1998). Therefore, claims of a substantial denial of a constitutional right not raised in the original or amended petition are waived, and those previously decided on direct appeal are barred by res judicata. People v. Tenner, 206 Ill.2d 381, 392, 276 Ill.Dec. 343, 794 N.E.2d 238 (2002). In the context of successive postconviction petitions, the procedural bar of waiver is an express requirement of the statute and, therefore, cannot be relaxed unless fundamental fairness so requires. See 725 ILCS 5/122-3 (West 2002); see also People v. Pitsonbarger, 205 Ill.2d 444, 458, 275 Ill.Dec. 838, 793 N.E.2d 609 (2002).
Supreme Court Rule 604(d) (188 Ill.2d R. 604(d)) requires a defendant who wishes to appeal from a conviction following a guilty plea to first file in the circuit court a written motion to withdraw his guilty plea or to reconsider his sentence. A necessary antecedent, however, is that the defendant be given the admonitions prescribed by Rule 605 to advise him of those requirements. People v. Jamison, 181 Ill.2d 24, 29, 228 Ill.Dec. 920, 690 N.E.2d 995 (1998); People v. Johnson, 332 Ill.App.3d 81, 83, 265 Ill.Dec. 793, 773 N.E.2d 155 (2002). The parties correctly agree that defendant entered a partially negotiated plea, and therefore, Rule 605(b) governs the admonishments to which defendant was entitled. Rule 605(b) provides in relevant part as follows:
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People v. Pendleton
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