People v. Phyfiher

• Citation: 838 N.E.2d 181
• Decision Date: 28 October 2005
• Docket Number: No. 1-03-3100.,1-03-3100.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Whitaker PHYFIHER, Defendant-Appellant.
• Court: Supreme Court of Illinois

838 N.E.2d 181

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Whitaker PHYFIHER, Defendant-Appellant.

No. 1-03-3100.

Appellate Court of Illinois, First District, Fifth Division.

October 28, 2005.

Michael J. Pelletier, Office of the State Appellate Defender, Chicago (Bonnie Kim, of counsel), for Appellant.

Richard A. Devine, Cook County State's Attorney, Chicago (Renee Goldfarb, John E. Nowak and Thor Martin, of counsel), for Appellee.

Justice FROSSARD delivered the opinion of the court:

We revisit this case at the direction of the Illinois Supreme Court in an order dated September 29, 2005, to vacate our previous judgment and reconsider in light of People v. Blair, 215 Ill.2d 427, 294 Ill.Dec. 654, 831 N.E.2d 604 (2005). This court previously affirmed dismissal of defendant's pro se first-stage petition.

Following a jury trial, defendant Whitaker Phyfiher was convicted of vehicular hijacking, aggravated possession of a stolen motor vehicle, and possession of a stolen motor vehicle. Defendant was sentenced for vehicular hijacking, with the other convictions merged, to 18 years in the Illinois Department of Corrections as a mandatory Class X offender due to two previous convictions for robbery, a Class 2 felony. 730 ILCS 5/5-5-3(c)(8) (West 2000).

On appeal defendant's attorney filed a brief and motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Copies of the brief and motion were sent to defendant and he was advised that he could submit any points in support of his appeal. He did not respond. Defendant's appointed counsel on appeal was allowed to withdraw representation and we affirmed defendant's conviction. People v. Phyfiher, No. 1-02-3287 (2003) (unpublished order pursuant to Supreme Court Rule 23).

Defendant filed a pro se post-conviction petition alleging the following: (1) defendant was not proven guilty beyond a reasonable doubt; (2) trial counsel was ineffective for failing to exercise defendant's right to a speedy trial and for failing to call witnesses at sentencing; and (3) defendant was denied due process by the denial of his motion for a directed finding on the vehicular hijacking charge. The court dismissed the petition finding the issues raised by petitioner to be "frivolous and patently without merit." Defendant appeals the summary dismissal of his post-conviction petition.

FACTUAL BACKGROUND

On March 9, 2000, at approximately 1 p.m., Dennis Nannenga, a delivery man, walked out of a small store in the area of 524 West 71st Street in the City of Chicago and observed his Ford van driving past him. He ran to the passenger door, opened it, and yelled for the driver to stop. The driver increased speed while Nannenga continued to hold on to the door handle.

Chicago Police Officer John Deheer observed Nannenga holding on to the door of the van and chased the speeding van. After the van made a sharp turn, Nannenga fell onto the street and a green car struck the front passenger side of the van. The defendant jumped out of the van and began running. Officer Deheer ordered him to stop, but defendant continued to run. Officer Deheer jumped over fences and ran through alleys before catching the defendant. At that point, defendant hit Officer Deheer in the chest. Officer Deheer tackled defendant and then placed him under arrest.

Detective Steven Konow Mirandized and interviewed the defendant at the police station. Defendant admitted to driving the van while a white man jumped on the passenger side, hanging on to the door. Defendant indicated he tried to shake the man off by driving side to side. Defendant noticed a squad car with its siren activated and tried to get away; however, after crashing into another car, he jumped from the van and fled. He was caught and handcuffed to a fence by the officer chasing him. The jury found defendant guilty and he was sentenced to 18 years in prison for vehicular hijacking. 720 ILCS 5/18-3 (West 2000). On direct appeal, this court granted defendant's appointed counsel's motion to withdraw representation and affirmed his conviction. Defendant filed a post-conviction petition, which was summarily dismissed. Our review of the petition is de novo. People v. Coleman, 183 Ill.2d 366, 388-89, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998).

POST-CONVICTION HEARING ACT

The Post-Conviction Hearing Act (Act), (725 ILCS 5/122-1 et seq. (West 2000)), provides the mechanism by which criminal defendants may challenge their convictions or sentences for violations of federal or state constitutional law. People v. Tenner, 175 Ill.2d 372, 377, 222 Ill.Dec. 325, 677 N.E.2d 859 (1997). In a noncapital case, the Act provides a three-stage procedure for post-conviction relief. People v. Boclair, 202 Ill.2d 89, 99, 273 Ill.Dec. 560, 789 N.E.2d 734 (2002). Various sections of the Act provide guidance for each stage. At stage one, the trial court, without input from the State, examines the petition only to determine if the petition pleads a constitutional deprivation unrebutted by the record, rendering the petition neither frivolous nor patently without merit. 725 ILCS 5/122-2.1(a)(2), (b) (West 2000); Boclair, 202 Ill.2d at 99, 273 Ill.Dec. 560, 789 N.E.2d 734. Section 122-2.1 provides guidelines for resolution of a petition at the first stage. 725 ILCS 5/122-2.1 (West 2000).

If the petition is not dismissed at stage one, it proceeds to stage two, where section 122-4 of the Act provides for the appointment of counsel for an indigent defendant who wishes counsel to be appointed. 725 ILCS 5/122-4 (West 2000). At stage two, pursuant to section 122-5, the State has the opportunity to answer or move to dismiss the petition (725 ILCS 5/122-5 (West 2000)), and the circuit court determines whether the petition alleges a substantial showing of a constitutional violation. Coleman, 183 Ill.2d at 381, 233 Ill.Dec. 789, 701 N.E.2d 1063. Sections 122-4 and 122-5 provide guidelines for resolving a second-stage post-conviction petition. At stage one and stage two, the circuit court resolves pleading questions. Coleman, 183 Ill.2d at 385, 233 Ill.Dec. 789, 701 N.E.2d 1063. Under first-stage procedure, as provided by section 122-2.1, or under second-stage procedure, as provided by section 122-5, the circuit court is foreclosed from engaging in any fact-finding because all well-pleaded facts not rebutted by the record are to be taken as true at stage one and stage two of the post-conviction process. Coleman, 183 Ill.2d at 380-81, 233 Ill.Dec. 789, 701 N.E.2d 1063.

If the petition is not dismissed at stage two, it proceeds to stage three for an evidentiary hearing. Section 122-6 provides guidelines for resolution of a petition at stage three. 725 ILCS 5/122-6 (West 2000). At stage three, the circuit court resolves questions of disputed fact. An evidentiary hearing on the petition is required when the allegations of the petition, supported by the trial record and the accompanying affidavits, demonstrate a substantial violation of a constitutional right unrebutted by the record. People v. Mitchell, 189 Ill.2d 312, 322, 245 Ill.Dec. 1, 727 N.E.2d 254 (2000).

ANALYSIS

Consistent with the terms of the Act and the purpose of the first stage, we address whether the petition was properly dismissed. The trial court summarily dismissed defendant's petition. On appeal defendant argues that dismissal was improper because it was based on the "procedural ground of waiver rather than on the claim's substantive merits."

In Blair, the Illinois Supreme Court held that a trial court can summarily dismiss a post-conviction petition based on a finding that a claim was forfeited, or waived, or that a claim was res judicata, or already decided, because such claims are encompassed by the "frivolous and patently without merit" standard for first-stage dismissal. Blair, 215 Ill.2d at 444-45, 294 Ill.Dec. 654, 831 N.E.2d 604.

Regarding whether a first-stage petition is frivolous or patently without merit, section 122-2.1(c) of the Act specifically provides that the court may examine not only the court file, but any action taken by an appellate court. Such examination of the record is designed to assist the circuit court in determining whether the petition states a constitutional deprivation substantively unrebutted by the record rendering the petition neither frivolous nor patently without merit as provided by section 122-2.1(a)(2). Our review of the record, as provided by section 122-2.1(a)(2), demonstrates the trial court's dismissal in the instant case was proper.

We note, in the instant case, regarding the allegations related to the sufficiency of the evidence, the trial court not only based first-stage dismissal on waiver, but made a further finding that "the issues raised and presented by petitioner are frivolous and patently without merit." In fact, after addressing each allegation raised in the petition, the written order dismissing the petition provides in its conclusion that "Based upon the foregoing discussion, the court further finds that the issues raised and presented by petitioner are frivolous and patently without merit." As reflected by the record, the trial judge's conclusion that the issues raised by petitioner were frivolous and patently without merit was correct.

Regarding defendant's conviction for vehicular hijacking, he contends he was not proven guilty beyond a reasonable doubt and his due process right was violated by the court's failure to direct a verdict in his favor on that charge. Vehicular hijacking occurs when a person does the following: (1) takes a motor vehicle, (2) from the person or immediate presence of another, (3) by the use of force or by threatening the imminent use of force. 720 ILCS 5/18-3 (West 2000).

Defendant relies on People v. Cooksey, 309 Ill.App.3d 839, 847, 243 Ill.Dec. 481, 723 N.E.2d 784 (1999), in support of his argument that he was not proven guilty beyond a reasonable doubt because the victim was...