People v. Rogers

• Decision Date: 20 April 2007
• Docket Number: No. 2-05-0883.,2-05-0883.
• Citation: 866 N.E.2d 1256
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sandra ROGERS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

866 N.E.2d 1256

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sandra ROGERS, Defendant-Appellant.

No. 2-05-0883.

Appellate Court of Illinois, Second District.

April 20, 2007.

G. Joseph Weller, Thomas A. Lilien, Deputy Defenders, Paul Alexander Rogers (all Court-appointed), Office of the State Appellate Defender, Elgin, for Sandra Rogers.

Michael J. Waller, Lake County State's Attorney, Waukegan, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Catherine A. Voigt, Glen Ellyn, for the People.

Presiding Justice GROMETER delivered the opinion of the court:

Defendant, Sandra Rogers, appeals from an order of the circuit court of Lake County summarily dismissing her petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2004)) from her convictions of two counts of attempted murder (720 ILCS 5/8-4, 9-1 (West 2002)). We reverse and remand.

On November 24, 2004, defendant entered a negotiated guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). That same day, in accordance with her agreement with the State, defendant was sentenced to consecutive prison terms of 18 and 12 years. As the factual basis for the plea, it was stipulated that if the case proceeded to trial, evidence would be introduced showing that defendant's former husband, Richard Rogers, and his wife were attacked in their home with a hammer and suffered life-threatening head and facial injuries. Seventeen-year-old Jonathan M. admitted to police that he was involved in the attack. He had been in a sexual relationship with defendant's and Richard's youngest daughter, who was 14 years old. At first he claimed that he acted alone, but he later told police that he perpetrated the attack with defendant.

Jonathan M. had lived for several months with defendant and her daughter. As a result of the sexual relationship between Jonathan M. and defendant's daughter, defendant lost custody of the girl to Richard. Shortly before the attack, defendant had been caught in violation of a court order that apparently prohibited her from allowing her daughter to have contact with Jonathan M. Consequently, defendant faced the possibility of incarceration for contempt of court and the possibility that the court would order that her visitation with her daughters be supervised.

Jonathan M. would testify that he continued to spend a great deal of time with defendant in her home after her daughter went to live with Richard. Jonathan M. had a sexual encounter with defendant. Hours before the attack, defendant had told him that she wanted to kill Richard. Defendant admitted to police that she had a sexual encounter with Jonathan M. and that she had told him, in essence, that Richard needed to die. She stated, however, that it was not her intent that Jonathan M. act on the statement, and she did not believe that he would do so. She denied having gone to the victims' home with Jonathan M., stating that she was home in bed at the time of the attack.

The trial court accepted defendant's plea and imposed sentence in accordance with defendant's agreement with the State. Defendant did not move to withdraw her plea and did not file a notice of appeal. However, on March 21, 2005, she filed a pro se petition under the Act, alleging that shortly before she entered her plea, her attorney told her that he had been advised by the prosecutor about a sworn statement prepared by Jonathan M. The statement purportedly indicated that a Lake County corrections officer named Sims had delivered a message to Jonathan M. from defendant saying that defendant "was sorry." According to defendant's attorney, Officer Sims was supposed to testify about this message. In her postconviction petition, defendant alleged, "The only message I ever gave Officer Sims for Jonathan [M.] was `How are you and I love you.'"

Defendant further alleged that prior to this conversation with her attorney, she had believed that Jonathan M.'s "lies" would be "evident to everyone" and she was ready to go to trial. She felt that Officer Sims must have somehow misunderstood her message to Jonathan M. However, defendant believed that "with Jonathan [M.]'s lies and Officer Sims['s] mistaken testimony, it would be the final nail in [her] coffin."

After entering her plea, however, defendant had a chance to speak with Officer Sims. Officer Sims assured defendant that Jonathan M. and the prosecutor had lied about her statement. Defendant alleged that her attorney had never investigated Jonathan M.'s and Officer Sims's purported statements; he merely took the prosecutor at his word about those statements. Defendant alleged that after speaking with Officer Sims, she "ha[d] written to [her attorney] begging for his help and detailing all the new evidence and lies and asking him to please talk to Officer Sims." Defendant received no response. The petition is verified by defendant's affidavit. However, defendant did not attach any other affidavits, records, or evidence to the petition.

The trial court summarily dismissed the petition on June 20, 2005. Defendant filed a notice of appeal on August 18, 2005, and the record on appeal was certified on December 2, 2005. On December 28, 2005, defendant filed a motion in this court for leave to file a late notice of appeal. This court allowed the motion on January 6, 2006, and ordered the clerk of this court to transmit the notice of appeal to the clerk of the circuit court for filing.

At the outset, we note that the State questions our jurisdiction to hear this appeal. The State observes that, although the appendix to defendant's brief includes a copy of the late notice of appeal file-stamped by the clerk of the circuit court, the notice of appeal does not actually appear in the record on appeal. Its absence is not surprising given that the record on appeal was certified before defendant moved to file a late notice of appeal. Under these circumstances, and given that we ordered the clerk of this court to transmit the late notice of appeal to the clerk of the circuit court for filing, we are satisfied that the file-stamped copy is sufficient evidence that the late notice of appeal was properly filed so as to invoke our jurisdiction. Accordingly, we turn to the merits of the appeal.

The Act "establishes a procedure for determining whether a criminal defendant was convicted in substantial violation of his or her constitutional rights." People v. Collins, 202 Ill.2d 59, 65, 270 Ill.Dec. 1, 782 N.E.2d 195 (2002). Section 122-1(b) of the Act provides that a petition for relief under the Act shall be verified by affidavit. 725 ILCS 5/122-1(b) (West 2004). Section 122-2 of the Act provides that "[t]he petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." 725 ILCS 5/122-2 (West 2004).

In cases where the defendant has been sentenced to imprisonment rather than to death, proceedings under the Act are divided into three stages. People v. Gaultney, 174 Ill.2d 410, 418, 221 Ill.Dec. 195, 675 N.E.2d 102 (1996). The first stage is governed by section 122-2.1(a) of the Act (725 ILCS 5/122-2.1(a) (West 2004)), under which the trial court is required to independently examine the petition within 90 days after it is filed and docketed. The trial court shall summarily dismiss the petition if it finds that it "is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2004). "A post-conviction 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.'" People v. Edwards, 197 Ill.2d 239, 244, 258 Ill.Dec. 753, 757 N.E.2d 442 (2001), quoting Gaultney, 174 Ill.2d at 418, 221 Ill.Dec. 195, 675 N.E.2d 102. However, as will be discussed at greater length below, the failure to substantiate the petition with affidavits, records, or other evidence is also grounds for summary dismissal. Collins, 202 Ill.2d at 66, 270 Ill.Dec. 1, 782 N.E.2d 195.

Defendant argues that her petition sets forth the gist of a constitutional claim under three theories (which we consider in a different order than presented in her brief). First, defendant contends that her petition sets forth the gist of a claim of ineffective assistance of counsel in connection with the entry of her guilty plea. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), established a two-prong test for evaluating claims of ineffective assistance of counsel. Under Strickland, the defendant must show that counsel's performance "fell below an objective standard of reasonableness" and that the deficient performance was prejudicial in that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694, 104 S.Ct. at 2064, 2068, 80 L.Ed.2d at 693, 698. "In order to satisfy the `prejudice' requirement in a plea proceeding, the defendant must show that there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial." People v. Pugh, 157 Ill.2d 1, 15, 191 Ill. Dec. 10, 623 N.E.2d 255 (1993).

Defendant argues that she decided to plead guilty after her attorney told her that the State claimed to have evidence that Officer Sims conveyed an apology from defendant to Jonathan M. Defendant argues that her attorney should have interviewed Officer Sims and that, if he had done so, he would have learned that she delivered no such apology. Defendant contends that had she known that Officer Sims would refute the State's claim, she would have insisted on going to trial. In a second, related theory, defendant posits that her constitutional right to due process of law was violated because the...