People v. Rivera

• Decision Date: 06 December 2001
• Docket Number: No. 89884.,89884.
• Citation: 763 N.E.2d 306,198 Ill.2d 364,261 Ill.Dec. 336
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Ernesto RIVERA, Appellee.
• Court: Illinois Supreme Court

763 N.E.2d 306

198 Ill.2d 364

261 Ill.Dec. 336

The PEOPLE of the State of Illinois, Appellant, v. Ernesto RIVERA, Appellee.

No. 89884.

Supreme Court of Illinois.

December 6, 2001.

Rehearing Denied February 4, 2002.

James E. Ryan, Attorney General, Springfield, Michael T. James, States's Attorney, Ottawa (Joel D. Bertocchi, Solicitor General, William L. Browers, Michael Hoard, Assistant Attorneys General, Chicago, Norbert J. Goetten, John X. Breslin, Office of the State's Attorneys Appellate Prosecutor, Julie Madison Angus, Ottawa, of counsel), for the People.

Robert Agostinelli, Deputy Defender, Santiago A. Durango, Assistant Defender, Office of the State Appellate Defender, Ottawa, for appellee.

Justice FREEMAN delivered the opinion of the court:

We granted leave to appeal (177 Ill.2d R. 315(a)) in this case in order to decide whether the circuit court may, during the summary stage of a post-conviction proceeding, partially dismiss some claims raised in a post-conviction petition while advancing other claims raised in the same petition to the second stage of the proceeding. In this case, the circuit court believed that it could proceed in such fashion. The appellate court disagreed, holding that a "defendant's postconviction petition must survive as a whole or be dismissed as a whole." 315 Ill.App.3d 454, 458, 248 Ill. Dec. 318, 734 N.E.2d 26. We now affirm the appellate court's judgment in part and remand the case to that court for further proceedings.

BACKGROUND

After a trial in the circuit court of La Salle County, a jury found defendant, Ernesto Rivera, guilty of controlled substance trafficking. 720 ILCS 570/401.1 (West 1992). Defendant received a prison sentence of 40 years. He was also fined $1,774,290, which represented the street value of the cocaine involved in the trafficking. The appellate court affirmed the convictions on direct appeal. People v. Rivera, 268 Ill.App.3d 1124, 226 Ill.Dec. 218, 685 N.E.2d 32 (1995).

Defendant then filed a pro se petition for post-conviction relief pursuant to the Illinois Post Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 1998)). The petition alleged six violations of defendant's constitutional rights. Specifically, defendant alleged that (i) the interpreter provided to him during the trial did not adequately translate the proceedings for him, (ii) the sentencing statute under which he had been sentenced was unconstitutional, (iii) his prison sentence and street value fine were excessive, (iv) the circuit court erred in denying his motion to suppress, (v) his consent to search was coerced, and (vi) both his trial and appellate attorneys provided him ineffective assistance of counsel. The circuit court dismissed claims (ii) through (v) as frivolous or patently without merit. See 725 ILCS 5/122-2.1 (West 1998). However, the court found that defendant had stated the gist of a meritorious claim in both claims (i) and (vi). The court appointed an attorney to represent defendant and advanced claims (i) and (vi) to the second stage of post-conviction review.

Subsequently, defendant moved pro se to amend his petition, stating that he wanted to add two claims. Defendant argued that he had been prejudiced by gender bias on the jury and that he had been denied his right to testify in his own behalf. Defendant's appointed counsel then filed an amended post-conviction petition on defendant's behalf. This petition alleged incompetence on the part of defendant's interpreter, ineffective assistance of counsel on the part of defendant's attorneys and extensive sentencing.

The State moved to dismiss the amended petitions. The circuit court dismissed all of the claims except for defendant's contention that the interpreter was incompetent. The court ordered that an evidentiary hearing be held as to that issue.

At the conclusion of the evidentiary hearing, the circuit court found that defendant had not proved that his interpreter was incompetent, only that he failed to understand some of the proceedings. The judge further found that defendant had the opportunity to stop the proceedings and ask for clarification if defendant so desired. For these reasons, the circuit court denied defendant post-conviction relief.

Defendant appealed. He argued, as an initial matter, that the circuit court erred in entering the partial dismissals of his post-conviction petition. The appellate court agreed, holding that the Act does not provide for partial dismissals and that, as a result, defendant's entire petition should have survived to the second stage. Because the matter did not proceed in that fashion, the court stated that the cause had to be remanded "for further proceedings regarding the claims made by the defendant in his pro se petition. The trial court is directed to appoint counsel to represent the defendant and to proceed as though none of the proceedings that followed the partial dismissal had taken place." 315 Ill.App.3d at 458, 248 Ill.Dec. 318, 734 N.E.2d 26. This appeal followed.

ANALYSIS

The positions of the parties in this case are relatively straightforward. The State maintains that the circuit court may, under the Act, summarily dismiss portions of a post-conviction petition as frivolous or patently without merit because the Act does not expressly prohibit such an action. Defendant responds that such dismissals are not permitted because the Act neither expressly permits nor provides for them. In light of this, the question presented in this case is one of statutory interpretation and, as such, our standard of review is de novo. King v. Industrial Comm'n, 189 Ill.2d 167, 244 Ill.Dec. 8, 724 N.E.2d 896 (2000)

.

The Illinois Post Conviction Hearing Act provides a mechanism by which those under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both. See 725 ILCS 5/122-1 et seq. (West 1998). Proceedings under the Act are commenced by the filing of a petition in the circuit court in which the original proceeding took place. Prior to November 23, 1983, the Act provided that a post-conviction proceeding was commenced by filing a petition with the clerk of the court in which the conviction in question took place. The clerk was required to docket the petition and bring it to the attention of the court (Ill.Rev.Stat. 1981, ch. 38, par. 122-1), which would then appoint counsel to represent the petitioner if the petitioner so requested. Ill.Rev. Stat.1981, ch. 38, par. 122-4. At that point, the State was then required to answer the petition or move to dismiss it. Ill.Rev.Stat.1981, ch. 38, par. 122-5.

The General Assembly amended the Act in 1983 by adding section 122-2.1, which is the section at issue in this case. As a result of the 1983 amendment, petitioners were no longer entitled to the assistance of counsel in drafting their post-conviction petitions. When a petitioner, whether under sentence of death or not, filed a post-conviction petition, the trial court was directed by section 122-2.1 to determine whether the petition was "frivolous" or was "patently without merit." Ill.Rev. Stat.1985, ch. 38, par. 122-2 .1(a). If the trial court found the petition to be frivolous or patently without merit, the statute directed the trial court to dismiss it. Ill. Rev.Stat.1985, ch. 38, par. 122-2.1(a). If the petition was not dismissed, the statute directed the trial court to order that the petition be docketed for further proceedings pursuant to sections 122-4 through 122-6 of the Act. Ill.Rev.Stat.1985, ch. 38, par. 122-2.1(b). Once so docketed, section 122-4 provided the means for a trial court to appoint counsel if the court was "satisfied that the petitioner has no means to procure counsel." Ill.Rev.Stat.1985, ch. 38, par. 122-4. If a petition survived dismissal pursuant to section 122-2.1, the statute directed that the State answer or move to dismiss the petition. Ill.Rev.Stat.1985, ch. 38, par. 122-5.

Thus, the biggest change wrought to the Act by virtue of the 1983 amendment was that counsel was appointed to an indigent petitioner only after the court initially reviewed the petition and only if the court did not dismiss the petition on the ground of frivolity. Also, the State was permitted to answer or move to dismiss the petition only after the court made an order pursuant to section 122-2.1.

Further change occurred in 1989, when the General Assembly amended the newly created section 122-2.1. As a result of the 1989 change, the statute now provides that if a post-conviction petitioner is under sentence of death, the trial court shall appoint counsel to assist the petitioner in preparing the petition if the petitioner lacks funds to procure counsel. 725 ILCS 5/122-2.1(a)(1) (West 1998); see also People v. Brisbon, 164 Ill.2d 236, 242-43, 207 Ill.Dec. 442, 647 N.E.2d 935 (1995) (discussing the Act's differing procedures for prisoners under sentence of death and those sentenced to imprisonment). The amendment also created section 122-2.1(a)(2), which currently provides that if a petitioner is sentenced to imprisonment and the trial court determines that the petition is "frivolous" or is "patently without merit," the trial court shall dismiss the petition. 725 ILCS 5/122-2.1(a)(2) (West 1998). If the petition is not dismissed pursuant to section 122-2.1(a)(2), then the trial court is to "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 1998). Accordingly, the trial court may appoint counsel to an indigent non-capital petitioner if the petition survives the summary dismissal stage. See 725 ILCS 5/122-4 (West 1998). Therefore, after January 1, 1990, a trial court could no longer dismiss a capital litigant's petition on the basis of frivolity. However, noncapital litigants still had to survive the trial court's frivolity...