People v. Stewart

• Decision Date: 23 March 1988
• Docket Number: No. 62086,62086
• Citation: 528 N.E.2d 631,123 Ill.Dec. 927,123 Ill.2d 368
• Parties: , 123 Ill.Dec. 927 The PEOPLE of the State of Illinois, Appellee, v. Walter STEWART, Appellant.
• Court: Illinois Supreme Court

Page 631

528 N.E.2d 631

123 Ill.2d 368, 123 Ill.Dec. 927

The PEOPLE of the State of Illinois, Appellee, v. Walter STEWART, Appellant.

No. 62086.

Supreme Court of Illinois.

March 23, 1988.

Rehearing Denied Oct. 3, 1988.

Charles M. Schiedel, Deputy Defender, Springfield, Charles Hoffman, Asst. Appellate Defender, Office of the State Appellate Defender, Chicago, for appellant.

Neil F. Hartigan, Atty. Gen., Chicago (Richard M. Daley, State's Atty., Thomas V. Gainer, Jr., Kevin Sweeney, Asst. State's Attys., of counsel), for appellee.

Justice RYAN delivered the opinion of the court:

The defendant, Walter Stewart, brings this appeal from a dismissal of his petition for post-conviction relief without an evidentiary hearing in the circuit court of Cook County. At his original trial, the defendant entered pleas of guilty to charges of murder, attempted murder and armed robbery. After the pleas were accepted and judgments were entered, the prosecution sought the death penalty. Following a bench sentencing hearing, the trial judge sentenced the defendant to death. A 30-year sentence for the attempted murder and armed robbery was also imposed. A post-trial motion to withdraw the guilty pleas and vacate the convictions was denied.

On direct appeal, this court affirmed the convictions and sentences. (People v. Stewart (1984), 101 Ill.2d 470, 79 Ill.Dec. 123, 101 Ill.2d 470). A petition for rehearing in this court was denied, and the Supreme Court denied certiorari. Stewart v. Illinois (1984), 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237.

The defendant then filed a petition seeking relief under the Post-Conviction Hearing Act (Ill.Rev.Stat.1985, ch. 38, par. 122-1 et seq.). The circuit court dismissed the petition without an evidentiary hearing, and a direct appeal to this court followed. 107 Ill.2d R. 651.

A post-conviction proceeding is not one in which a defendant's guilt or innocence is determined, but rather is limited to consideration of constitutional issues which have not previously been reviewed. (People v. Gaines (1984), 105 Ill.2d 79, 85 Ill.Dec. 269, 473 N.E.2d 868.) Thus, the facts relating to the underlying offenses and prior proceedings will be set forth only as they are relevant to the issues presented.

The scope of post-conviction review is limited by the doctrines of res judicata and waiver. In essence, post-conviction proceedings are limited to issues which have not been, and could not have been, previously adjudicated. Put another way, all issues actually decided on direct appeal are res judicata, and all those which could have been presented but were not are deemed waived. (People v. Gaines (1984), 105 Ill.2d 79, 88-89, 85 Ill.Dec. 269, 274-275 N.E.2d 868, 873-874; People v. French (1970), 46 Ill.2d 104, 107, 262 N.E.2d 901.) We find that several of the issues raised by the petitioner are barred by these doctrines.

The defendant's first assertion is that his guilty plea was involuntary in that, at the time of the plea, he did not understand the nature of the charges to which he was pleading guilty, he did not understand that he had a right to persist in a not-guilty plea, and his decision to plead guilty was the product of psychological pressure and confusion.

The detailed circumstances surrounding the plea are described in our opinion disposing of the defendant's direct appeal and need not be reiterated here. (People v. Stewart (1984), 101 Ill.2d 470, 79 Ill.Dec. 123, 463 N.E.2d 677.) In that opinion, we rejected the claim that the guilty plea proceedings did not satisfy the requirements of due process or of our Rule 402 (107 Ill.2d R. 402), because the defendant was adequately admonished by the trial judge. (101 Ill.2d 470, 483-87, 79 Ill.Dec. 123, 463 N.E.2d 677.) Thus, the voluntariness issue concerning the guilty plea is barred. People v. Kubat (1986), 114 Ill.2d 424, 103 Ill.Dec. 90, 501 N.E.2d 111; People v. Jones (1985), 109 Ill.2d 19, 92 Ill.Dec. 552, 485 N.E.2d 363.

The defendant submits, however, that res judicata should not apply because the instant claim is distinguishable from the claim raised on direct appeal. His argument runs as follows. On direct appeal, he did not raise the issue of the actual involuntariness of his guilty plea. Rather, he challenged only the sufficiency of the record of the plea proceeding to meet the requirements of Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Further, the Boykin issue concerned only the on-the-record proceedings in the trial court. The issue raised here at the post-conviction stage, defendant argues, relates to off-the-record matters such as the defendant's actual, subjective knowledge, understanding and emotional state. The defendant concludes that these matters, being off-the-record, could not have been raised on direct appeal, and hence are not res judicata.

Whatever the merits of the defendant's res judicata analysis may be, his claim of involuntariness must fail for another fundamental reason. He failed to include this argument in his motion to vacate his guilty plea, and therefore the issue has been waived, regardless of whether res judicata is involved.

Supreme Court Rule 604(d), which relates to appeals from judgments entered upon pleas of guilty, provides, in pertinent part:

"(d) Appeal by Defendant from a Judgment Entered upon a Plea of Guilty. No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment. The motion shall be in writing and shall state the grounds therefor. When the motion is based on facts that do not appear of record it shall be supported by affidavit. * * * Upon appeal any issue not raised by the defendant in the motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived." (Emphasis added.) 107 Ill.2d R. 604(d).

Thus, by its explicit terms, Rule 604(d) states that issues not preserved in a motion to vacate a guilty plea are waived. The waiver rule applies to post-conviction proceedings as well as to appeals. (People v. Ward (1971), 48 Ill.2d 117, 120-21, 268 N.E.2d 692.) Also, the rule specifically allows for introduction of extra-record facts by affidavit, so the defendant's "off-the-record" argument is unavailing.

Any allegations relating to the defendant's subjective confusion or lack of understanding could have been supported by affidavits at the motion-to-vacate stage. Because they were not, we find that the issue has been waived.

The defendant next contends that he was precluded from exercising his right to testify at his sentencing hearing because he was led to believe that he had forfeited that right by statements of the trial judge. Further, he asserts that this misconception was not corrected by admonitions from the judge or by advice from his defense counsel. We find, however, that this claim must also be treated as waived.

After the defendant's sentencing hearing was concluded, he obtained new counsel, who filed a lengthy post-trial motion to withdraw the guilty plea and vacate the death sentence. Some 11 different grounds for vacation of the sentence were raised. Many of these same claims were later presented in the defendant's direct appeal. The instant claim, that the defendant was unaware of his right to testify at his sentencing hearing, was not among the issues raised. The briefs and record do not suggest, nor can we conceive, any reason why this claim could not have been preserved at the post-trial stage. Therefore, we find the matter waived.

The defendant next complains that the discretion vested in the State's Attorney to request a death penalty hearing (Ill.Rev.Stat.1979, ch. 38, par. 9-1(d)) has resulted in an uneven and unconstitutional application of our death penalty statute.

The trial court, in dismissing the post-conviction petition without an evidentiary hearing, stated that the matters set forth in count III related to the death penalty statute itself and its operation, and were previously passed on by this court. The State argues that the question of the validity of the statutory grant of prosecutorial discretion was raised by the defendant in the trial court following his conviction and on direct appeal in this court, and asserts this issue is barred in a post-conviction proceeding by res judicata. (See People v. Jones (1985), 109 Ill.2d 19, 92 Ill.Dec. 552, 485 N.E.2d 363.) The defendant contends that he is not raising the question of the facial constitutionality of the statute, but instead contends it is unconstitutional as applied.

In this post-conviction proceeding, the defendant, on various issues, has attempted to divide the constitutional question into separate components and, in order to avoid the res judicata bar, claims that on direct appeal only component A of the question was litigated, whereas in the post-conviction proceeding he is litigating component B. We have noted above the use of this tactic as to other issues. The same tactic has been employed with respect to the question of prosecutorial discretion. We have noted above that when a defendant has taken an appeal from a judgment of conviction, the judgment of the reviewing court is res judicata as to all issues actually decided by the court and that all other issues which could have been presented to the reviewing court, if not presented, are waived. People v. Jones (1985), 109 Ill.2d 19, 24, 92 Ill.Dec. 552, 485 N.E.2d 363; People v. Kamsler (1968), 39 Ill.2d 73, 74, 233 N.E.2d 415.

The defendant argues, as he did before, that res judicata is not applicable to this issue because off-the-record materials, upon which the present contention is based, were developed long after the defendant's direct appeal had been decided. It appears that this argument is based on the fact that certain information concerning the practices in various State's Attorneys'...