People v. Sargent

• Decision Date: 31 May 2005
• Docket Number: No. 1-03-2096.,1-03-2096.
• Citation: People v. Sargent, 830 N.E.2d 684, 357 Ill.App.3d 946 (Ill. 2005)
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. D'Arthagan SARGENT, Defendant-Appellant.
• Court: Illinois Supreme Court

830 N.E.2d 684

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. D'Arthagan SARGENT, Defendant-Appellant.

No. 1-03-2096.

Appellate Court of Illinois, First District, First Division.

May 31, 2005.

Michael J. Pelletier, Lynda L. Schoop, Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, Renee Goldfarb, James E. Fitzgerald, William L. Toffenetti, Office of the Cook County State's Attorney, Chicago, for Appellee.

Justice GORDON delivered the opinion of the court:

Petitioner, D'Arthagan Sargent, appeals the summary dismissal of his postconviction petition at the second stage of review. He contends that the employment of the summary dismissal procedure, only authorized during the first stage of review by the Post-Conviction Hearing Act (725 ILCS 5/122-2.1(a) (West 2002)), at what was only designated a status hearing, violated his due process rights. He further argues that remand is required because his postconviction attorney failed to certify that he consulted with petitioner, reviewed the record, and modified the petition as necessary so as to adequately present petitioner's contentions, as required by Supreme Court Rule 651(c) ( 134 Ill.2d R. 651(c)). The State concedes that the procedure employed by the circuit court was improper and that there is no showing of compliance with Rule 651(c) by postconviction counsel. However, the State contends that any error was harmless as petitioner could under no circumstances have prevailed on the substance of his petition. We affirm.

I. FACTUAL BACKGROUND

Petitioner was sentenced to a term of 80 years in prison on August 26, 1987, after being convicted by a jury of first degree murder. Petitioner's direct appeal was denied in People v. Sargent, 207 Ill.App.3d 631, 152 Ill.Dec. 631, 566 N.E.2d 318 (1990). On January 30, 2001, petitioner filed his instant postconviction petition, alleging that his sentence was based on a finding that the murder was accompanied by exceptionally brutal and heinous conduct, a statutory enhancement that was never charged in his indictment or submitted to the jury for proof beyond a reasonable doubt. Petitioner therefore contended that his sentence violated the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

The circuit court allowed the petition to proceed to the second stage of review and appointed the public defender to represent petitioner in postconviction proceedings. After a series of continuances, postconviction counsel and the State appeared before the circuit court on June 12, 2003, for a status hearing. Postconviction counsel informed the court that the petition was based on Apprendi, and that one of her colleagues at the public defender's office would file a supplemental petition by the next court date. The court, however, in spite of no motion to dismiss by the State, indicated that it was ready to dispose of the case at that time. Noting the Illinois Supreme Court's decision in People v. De La Paz, 204 Ill.2d 426, 274 Ill.Dec. 397, 791 N.E.2d 489 (2003), which barred retroactive application of Apprendi to cases where direct appeals had been exhausted as of the date of the Apprendi decision, the court dismissed the petition. The court denied petitioner's motion to reconsider on the same grounds.

Leading up to the dismissal, there had been no indication from postconviction counsel of any meeting with petitioner, nor of any review of his trial record. Postconviction counsel likewise never filed any certificate to verify compliance with Rule 651(c). Rule 651(c) provides:

"c) Record for Indigents; Appointment of Counsel. Upon the timely filing of a notice of appeal in a post-conviction proceeding, if the trial court determines that the petitioner is indigent, it shall order that a transcript of the record of the post-conviction proceedings, including a transcript of the evidence, if any, be prepared and filed with the clerk of the court to which the appeal is taken and shall appoint counsel on appeal, both without cost to the petitioner. The record filed in that court shall contain a showing, which may be made by the certificate of petitioner's attorney, that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional right, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner's contentions." 134 Ill.2d R. 651(c).

Petitioner appeals.

II. ANALYSIS

To begin, the State is entirely correct that the petition has no substantive merit. Our supreme court has conclusively determined that Apprendi cannot form the basis of a collateral attack when a petitioner exhausted his direct appeals prior to the Apprendi decision. De La Paz, 204 Ill.2d 426, 274 Ill.Dec. 397, 791 N.E.2d 489. Consequently, as under no circumstances under De La Paz, could the ruling of the circuit court ultimately have been different, in our view, any procedural error would have been harmless. See People v. Taylor, 349 Ill.App.3d 718, 720, 285 Ill.Dec. 761, 812 N.E.2d 581, 583 (2004) ("[w]e may look beyond any alleged procedural defect where, as in this case, defendant's petition raised a pure question of law, was frivolous and completely without merit, and no prejudice resulted from the trial court's dismissal").

Petitioner contends nevertheless that, because of the unforewarned transformation of the status hearing into a dispositive proceeding, we are compelled to reverse pursuant to People v. Kitchen, 189 Ill.2d 424, 244 Ill.Dec. 890, 727 N.E.2d 189 (1999), and People v. Bounds, 182 Ill.2d 1, 230 Ill.Dec. 591, 694 N.E.2d 560 (1998). We, however, disagree.

In both Kitchen and Bounds, our supreme court reversed the dismissal of postconviction petitions when the circuit court dismissed those petitions at hearings that had been designated only for consideration of discovery issues, not for any review of the merits. Kitchen, 189 Ill.2d at 434-35, 244 Ill.Dec. 890, 727 N.E.2d at 194-95; Bounds, 182 Ill.2d at 5, 230 Ill.Dec. 591, 694 N.E.2d at 562. In both cases the supreme court noted that the surprise shift in the proceedings was in violation of constitutional due process. Kitchen, 189 Ill.2d at 434-35, 244 Ill.Dec. 890, 727 N.E.2d at 194-95; Bounds, 182 Ill.2d at 5, 230 Ill.Dec. 591, 694 N.E.2d at 562. In concluding its analysis, the Kitchen the court stated: "[W]e * * * mean to send a clear message to both bench and bar that the protection of a defendant's right to procedural due process in post-conviction proceedings is of critical importance. We trust that such violations will not soon be repeated in our courtrooms." Kitchen, 189 Ill.2d at 435, 244 Ill.Dec. 890, 727 N.E.2d at 194-95. Thus, under a superficial reading of Kitchen and Bounds, petitioner's contentions might appear to have merit. However, a more thorough review of those cases reveals their inapplicability to the present case.

The opinions in Bounds and Kitchen give no indication that any claims of harmless error were ever raised by the State. Nor does it appear that a harmless error contention could have prevailed under the specific facts postured in those cases. At the time of the dismissal of their postconviction petitions, in both Kitchen and Bounds, the petitioners were still in the process of seeking discovery of police records to support their respective claims of constitutional deprivation. Kitchen, 189 Ill.2d at 428-31, 244 Ill.Dec. 890, 727 N.E.2d at 191-92; Bounds, 182 Ill.2d at 3-5, 230 Ill.Dec. 591, 694 N.E.2d at 561. In Kitchen, the constitutional claim was ineffective assistance of counsel. The constitutional violation alleged in Bounds is unarticulated. There is no indication that given sufficient opportunity through discovery the petitioners in Kitchen and Bounds would not have found data which could well have supported the grounds urged in their petitions. This may well explain why in Kitchen and Bounds the State did not appear to advance a harmless error claim for the court to consider. However, we detect no similar possibility of prejudice here where the question presented was purely a question of law and, as indicated previously, a previously settled question under De La Paz. Thus although counsel in this case may have been similarly surprised by the judge's sudden decision to address the merits of the petition, petitioner could have suffered no prejudice because there was nothing to be done to support his barred Apprendi claim.

Petitioner still contends, however, that demonstrated compliance with Rule 651(c) is an inflexible procedural requirement and, therefore, "whether the claims contained in the petition itself sufficiently allege constitutional violations is irrelevant, as the failure to comply with Rule 651(c) is reversible error, even where the petition itself fails to present a substantial constitutional question." We again disagree. We conclude that harmless error may, in limited circumstances, apply to Rule 651(c) violations and find that to be the only kind of error that occurred here.

As a general matter, courts have held that "[i]t is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless." People v. Benson, 266 Ill.App.3d 994, 1003, 204 Ill.Dec. 393, 641 N.E.2d 617, 624 (1994); accord People v. Reese, 121 Ill.App.3d 977, 986-87, 77 Ill.Dec. 390, 460 N.E.2d 446, 452-53 (1984). Moreover, courts may not ignore harmless error considerations merely as a means to chastise improper or poor performance in the trial court. See Reese, 121 Ill.App.3d at 987, 77 Ill.Dec. 390, 460 N.E.2d at 452-53, quoting United States v. Hasting, 461 U.S. 499, 507, 103 S.Ct. 1974, 1979, 76 L.Ed.2d 96, 105 (1983) ("the interests preserved by the doctrine of harmless error cannot be so lightly and casually ignored in order to chastise * * *...