People v. Simms

• Decision Date: 10 August 2000
• Docket Number: No. 86200.,86200.
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Darryl SIMMS, Appellant.
• Court: Illinois Supreme Court

736 N.E.2d 1092

192 Ill.2d 348

249 Ill.Dec. 654

The PEOPLE of the State of Illinois, Appellee, v. Darryl SIMMS, Appellant.

No. 86200.

Supreme Court of Illinois.

August 10, 2000.

Ronald H. Farley, Jr., of Naperville, for appellant.

James E. Ryan, Attorney General, of Springfield (Joel D. Bertocchi, Solicitor General, and William L. Browers and Colleen M. Griffin, Assistant Attorneys General, of Chicago, of counsel), for the People.

Justice FREEMAN delivered the opinion of the court:

On November 14, 1995, defendant, Darryl Simms, filed a post-conviction petition in the circuit court of Du Page County pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1994)). With leave of court, on May 21, 1997, defendant filed an amended petition in which he sought relief pursuant to the Post-Conviction Hearing Act and section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1994)). On August 12, 1998, the circuit court dismissed the amended petition without an evidentiary hearing. Defendant appeals directly to this court. 134 Ill.2d R. 651(a). We affirm in part, reverse in part and remand for an evidentiary hearing on certain claims raised by defendant.

BACKGROUND

Following a bench trial, defendant was convicted of murder (Ill.Rev.Stat.1985, ch. 38, par. 9-1(a)), aggravated criminal sexual assault (Ill.Rev.Stat.1985, ch. 38, par. 12-14(a)), criminal sexual assault (Ill.Rev.Stat. 1985, ch. 38, par. 12-13(a)), armed robbery (Ill.Rev.Stat.1985, ch. 38, par. 18-2), home invasion (Ill.Rev.Stat.1985, ch. 38, par. 12-11(a)) and residential burglary (Ill.Rev.Stat.1985, ch. 38, par. 19-3(a)). At a separate hearing, the trial court sentenced defendant to death. See Ill.Rev.Stat.1985, ch. 38, par. 9-1(b)(6). On direct appeal, this court affirmed defendant's convictions, but reversed and remanded for a new death sentencing hearing because of error during the aggravation-mitigation stage of the hearing. People v. Simms, 121 Ill.2d 259, 117 Ill.Dec. 147, 520 N.E.2d 308 (1988) (Simms I).

On remand, a jury determined that defendant was eligible for the death penalty and there were no mitigating factors sufficient to preclude the imposition of a death sentence. Accordingly, the trial court sentenced defendant to death. Again, on appeal, this court reversed and remanded for a new death sentencing hearing because of error during the aggravation-mitigation stage of the hearing. People v. Simms, 143 Ill.2d 154, 157 Ill.Dec. 483, 572 N.E.2d 947 (1991) (Simms II).

At the third death sentencing hearing, a jury once more found defendant eligible for the death penalty and concluded that there were no mitigating factors sufficient to preclude the imposition of a death sentence. Consequently, the trial court sentenced defendant to death. On appeal, this court affirmed defendant's death sentence. People v. Simms, 168 Ill.2d 176, 213 Ill.Dec. 576, 659 N.E.2d 922 (1995) (Simms III). Subsequently, the United States Supreme Court denied defendant's petition for a writ of certiorari. Simms v. Illinois, 518 U.S. 1021, 116 S.Ct. 2556, 135 L.Ed.2d 1074 (1996).

In Simms I, Simms II, and Simms III, we set forth in detail the facts supporting defendant's convictions and death sentence. To the extent that facts contained in these opinions pertain to the issues defendant raises in his amended petition, we will repeat them as we consider each issue.

DISCUSSION

A proceeding brought under the Post-Conviction Hearing Act is not a direct appeal but a collateral attack on the judgment of conviction. People v. Hawkins, 181 Ill.2d 41, 50, 228 Ill.Dec. 924, 690 N.E.2d 999 (1998). The purpose of the proceeding is to determine whether in the proceedings which resulted in the judgment of conviction there was a substantial denial of the petitioner's rights under either the state or federal constitution. 725 ILCS 5/122-1 (West 1994). The petitioner in a post-conviction proceeding is not entitled to an evidentiary hearing as a matter of right (People v. Evans, 186 Ill.2d 83, 89, 237 Ill.Dec. 118, 708 N.E.2d 1158 (1999); People v. Coleman, 183 Ill.2d 366, 381, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998); People v. Guest, 166 Ill.2d 381, 389, 211 Ill.Dec. 490, 655 N.E.2d 873 (1995)), and the petition cannot consist of nonfactual and nonspecific assertions which merely amount to conclusions that errors occurred at trial (People v. Kitchen, 189 Ill.2d 424, 433, 244 Ill.Dec. 890, 727 N.E.2d 189 (1999); Coleman, 183 Ill.2d at 381, 233 Ill.Dec. 789, 701 N.E.2d 1063; Guest, 166 Ill.2d at 389, 211 Ill.Dec. 490, 655 N.E.2d 873). Rather, the allegations in the petition must be supported by the record in the original trial proceedings or by the affidavits filed with the petition, and the petition is subject to dismissal when the allegations are contradicted by the record. Coleman, 183 Ill.2d at 381-82, 233 Ill.Dec. 789, 701 N.E.2d 1063. For the purpose of determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any accompanying affidavits, in light of the original trial record, are to be taken as true. Evans, 186 Ill.2d at 89, 237 Ill.Dec. 118, 708 N.E.2d 1158; Coleman, 183 Ill.2d at 380-82, 233 Ill.Dec. 789, 701 N.E.2d 1063.

In a post-conviction proceeding, issues that could have been presented on the direct appeal of the conviction but were not are deemed waived. People v. Richardson, 189 Ill.2d 401, 407-08, 245 Ill.Dec. 109, 727 N.E.2d 362 (2000); Evans, 186 Ill.2d at 89,237 Ill.Dec. 118,708 N.E.2d 1158. Further, determinations of the reviewing court on direct appeal are res judicata as to issues actually decided. People v. Williams, 186 Ill.2d 55, 62, 237 Ill.Dec. 112, 708 N.E.2d 1152 (1999); People v. Griffin, 178 Ill.2d 65, 73, 227 Ill.Dec. 338, 687 N.E.2d 820 (1997); People v. Mahaffey, 165 Ill.2d 445, 452, 209 Ill.Dec. 246, 651 N.E.2d 174 (1995). The petitioner may not avoid the bar of res judicata simply by rephrasing issues previously addressed on direct appeal. Williams, 186 Ill.2d at 62,237 Ill.Dec. 112,708 N.E.2d 1152. On the other hand, when a petitioner's claims are based upon matters outside the record, this court has emphasized that it is not the intent of the Act that such claims be adjudicated on the pleadings. Kitchen, 189 Ill.2d at 433,244 Ill.Dec. 890,727 N.E.2d 189; Coleman, 183 Ill.2d at 382,233 Ill.Dec. 789,701 N.E.2d 1063. Rather, the function of the pleadings in a proceeding under the Act is to determine whether the petitioner is entitled to a hearing. Coleman, 183 Ill.2d at 382,233 Ill.Dec. 789,701 N.E.2d 1063. The circuit court's dismissal of the post-conviction petition without an evidentiary hearing is reviewed de novo. Coleman, 183 Ill.2d at 387-89,233 Ill.Dec. 789,701 N.E.2d 1063.

As noted above, the circuit court dismissed defendant's amended petition without an evidentiary hearing. The amended petition contains allegations of numerous constitutional violations at defendant's third death sentencing hearing. For the most part, defense counsel did not object to the alleged errors at trial nor include them in a written post-trial motion. Furthermore, on direct appeal, appellate counsel did not include the alleged errors amongst the issues raised. In anticipation of a claim by the State that the alleged errors have been waived, defendant argues that his trial counsel was ineffective in failing to preserve the alleged errors for review, and his appellate counsel was ineffective in failing to bring the alleged errors to this court's attention on direct appeal or to argue that trial counsel was ineffective.

A defendant is guaranteed the effective assistance of counsel at trial and at a death sentencing hearing. Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674, 692-93 (1984). A defendant is also guaranteed the effective assistance of counsel on direct appeal as of right (Evitts v. Lucey, 469 U.S. 387, 396-97, 105 S.Ct. 830, 836-37, 83 L.Ed.2d 821, 830-31 (1985)), and a claim of ineffective assistance of appellate counsel is cognizable under the Post-Conviction Hearing Act (People v. Mack, 167 Ill.2d 525, 531, 212 Ill.Dec. 955, 658 N.E.2d 437 (1995)). Accordingly, this court has held that the doctrine of waiver should not bar consideration of an issue where the alleged waiver stems from incompetency of appellate counsel in failing to raise the issue on appeal. Mack, 167 Ill.2d at 531-32, 212 Ill.Dec. 955, 658 N.E.2d 437; Guest, 166 Ill.2d at 390, 211 Ill.Dec. 490, 655 N.E.2d 873; People v. Caballero, 126 Ill.2d 248, 269-70, 128 Ill.Dec. 1, 533 N.E.2d 1089 (1989).

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the familiar Strickland test. See Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. The test is composed of two prongs: deficiency and prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

First, the defendant must prove that counsel's performance was so deficient that counsel was not functioning as the "counsel" guaranteed by the sixth amendment. A court measures counsel's performance by an objective standard of competence under prevailing professional norms. To establish deficiency, the defendant must overcome the strong presumption that the challenged action or inaction might have been the product of sound trial strategy. Evans, 186 Ill.2d at 93, 237 Ill. Dec. 118, 708 N.E.2d 1158; Griffin, 178 Ill.2d at 73-74, 227 Ill.Dec. 338, 687 N.E.2d 820.

Second, the defendant must establish prejudice. The defendant must prove that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The prejudice prong of Strickland entails more than an "outcome-determinative" test. The defendant must show that counsel's deficient performance rendered the result of the trial unreliable or the proceeding...