People v. Szabo, 80891

• Court: Supreme Court of Illinois
• Citation: 186 Ill.2d 19,708 N.E.2d 1096,237 Ill.Dec. 56
• Docket Number: No. 80891,80891
• Parties: , 237 Ill.Dec. 56 The PEOPLE of the State of Illinois, Appellee, v. John SZABO, Appellant.
• Decision Date: 03 December 1998

Page 1096

708 N.E.2d 1096 186 Ill.2d 19, 237 Ill.Dec. 56 The PEOPLE of the State of Illinois, Appellee,
v.
John SZABO, Appellant. No. 80891. Supreme Court of Illinois. Dec. 3, 1998.

Rehearing Denied March 29, 1999.

Page 1097

[237 Ill.Dec. 57] Richard E. Cunningham, Attorney at Law, David Rubman, Law Office of David Rubman, Chicago, for John Szabo.

Hon. Jim Ryan, Attorney General, Criminal Appeals Div., Steven R. Splitt, Attorney Reg. & Disc. Comm., Chicago, State's Attorney Will County, Joliet, for the People.

Justice MILLER delivered the opinion of the court:

The defendant, John Szabo, brings this appeal from an order of the circuit court of Will County denying his post-conviction petition after an evidentiary hearing. Because the defendant received the death penalty for the underlying murder convictions, the present appeal lies directly to this court. 134 Ill.2d R. 651(a).

The defendant was convicted of murder and sentenced to death in the circuit court of Will County in 1979. In the appeal from that judgment, this court vacated the defendant's convictions and remanded the cause for a determination whether a new trial was necessary because of an alleged discovery violation. At the same time, the court vacated the defendant's death sentence and directed the trial court to conduct a new sentencing hearing if the convictions were able to stand. People v. Szabo, 94 Ill.2d 327, 68 Ill.Dec. 935, 447 N.E.2d 193 (1983). On remand, the trial

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[237 Ill.Dec. 58] court reinstated the defendant's convictions, and a new sentencing hearing, conducted before a jury in 1984, again resulted in a sentence of death. This court subsequently affirmed the defendant's convictions and death sentence (People v. Szabo, 113 Ill.2d 83, 100 Ill.Dec. 726, 497 N.E.2d 995 (1986)), and the United States Supreme Court denied certiorari (Szabo v. Illinois, 479 U.S. 1101, 107 S.Ct. 1330, 94 L.Ed.2d 181 (1987)).

The defendant initiated post-conviction proceedings in August 1987. In a pro se petition, the defendant challenged the competence of the lawyer who represented him at trial in 1979, David Landau. The defendant also challenged the competence of the two lawyers who represented him at the second sentencing hearing in 1984, Paul Bjekich and Daniel Doyle. The defendant contended that Landau, the 1979 trial lawyer, was ineffective because he was under investigation by the Attorney Registration and Disciplinary Commission while he was representing the defendant. Separately, the defendant contended that Bjekich and Doyle, his 1984 resentencing lawyers, did not adequately prepare and present certain mitigating evidence, including evidence of the defendant's good conduct while incarcerated for the present offenses, and evidence that the defendant was acting under extreme mental or emotional disturbance at the time of the offenses. Counsel, Lawrence Morrissey, was appointed to represent the defendant in the post-conviction proceedings. The circuit court denied relief after an evidentiary hearing, and this court affirmed the judgment (People v. Szabo, 144 Ill.2d 525, 163 Ill.Dec. 907, 582 N.E.2d 173 (1991)). The United States Supreme Court denied certiorari. Szabo v. Illinois, 506 U.S. 832, 113 S.Ct. 99, 121 L.Ed.2d 59 (1992).

In February 1993, this court filed an opinion in an unrelated post-conviction matter, People v. Johnson, 154 Ill.2d 227, 182 Ill.Dec. 1, 609 N.E.2d 304 (1993), which addressed the duties of post-conviction counsel under Supreme Court Rule 651(c) (134 Ill.2d R. 651(c)). Regarding the record that must be prepared in the circuit court by appointed counsel in a post-conviction case, Rule 651(c) provides in pertinent part:

"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."

Johnson found that post-conviction counsel in that case had failed to comply with Rule 651(c) because he had not amended the defendant's pro se petition or submitted affidavits from possible mitigation witnesses identified in the petition. The court remanded the cause so that counsel could satisfy the requirements of the rule.

In May 1993, several months after the Johnson decision, the defendant, represented by new counsel, initiated the present action by filing a second post-conviction petition in the circuit court of Will County. By agreement of the parties a pending federal habeas corpus proceeding, which the defendant had filed in late April 1993, was dismissed without prejudice, so that the defendant could proceed on his state action. As the contents of the second post-conviction petition make clear, the impetus for the defendant's new petition was this court's decision in Johnson. Citing Johnson, the defendant alleged in his second petition that the lawyer representing him in the first post-conviction proceeding, Lawrence Morrissey, had failed to comply with Rule 651(c) by not submitting affidavits in support of the petition and by not amending the original pro se petition, as Rule 651(c) requires. In addition, the second post-conviction realleged the claims raised in the first petition regarding the conduct of Bjekich and Doyle at the resentencing hearing.

The State initially moved to dismiss the defendant's second post-conviction petition, arguing that it was a repetitive action barred by this court's earlier decision on the defendant's first post-conviction petition. The circuit court denied the State's dismissal motion. An evidentiary hearing on the substantive allegations in the defendant's second post-conviction petition was later conducted

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[237 Ill.Dec. 59] before a different judge, who denied relief. The defendant now brings this appeal from the denial of his second post-conviction petition. 134 Ill.2d R. 651(a). I

As a preliminary matter, we believe it is appropriate to consider whether the defendant may prosecute a second post-conviction petition in this case. Although the State does not renew before this court its contention that the present matter must be dismissed as a repetitive action, we believe that this inquiry, undertaken on our own initiative, is proper here. Waiver is not a bar to our consideration of the issue, for we have an obligation to ensure the uniform and orderly development of the law (see Hux v. Raben, 38 Ill.2d 223, 224-25, 230 N.E.2d 831 (1967)), and therefore we will consider here the timeliness of the defendant's second post-conviction petition.

As we have stated, this court previously affirmed the circuit court's denial of relief on the defendant's first post-conviction petition. People v. Szabo, 144 Ill.2d 525, 163 Ill.Dec. 907, 582 N.E.2d 173 (1991). At that time the court found that the lawyer who represented the defendant at the initial post-conviction hearing, Lawrence Morrissey, had substantially complied with Supreme Court Rule 651(c). Szabo, 144 Ill.2d at 531-33, 163 Ill.Dec. 907, 582 N.E.2d 173. Notwithstanding that determination, the defendant subsequently initiated the present proceeding, which constitutes his second post-conviction challenge to the underlying convictions and death sentence. The question that arises is whether the defendant may now pursue a second post-conviction petition, following the rejection of his first.

This court has previously allowed a successive post-conviction petition to go forward only when the proceedings on the initial petition were "deficient in some fundamental way." People v. Flores, 153 Ill.2d 264, 273-74, 180 Ill.Dec. 1, 606 N.E.2d 1078 (1992). This limitation on the circumstances in which successive petitions are allowed is designed to achieve a balance between society's interest in the finality of criminal convictions and the individual defendant's interest in vindicating constitutional rights. Flores, 153 Ill.2d at 274, 180 Ill.Dec. 1, 606 N.E.2d 1078. In opposition to the State's dismissal motion in the circuit court below, the defendant contended that the proceedings on his initial post-conviction petition were fundamentally deficient. The defendant argued below, in opposition to the State's dismissal motion, that our earlier decision regarding the initial petition should not preclude the present action, because the earlier decision did not adequately resolve all the issues then pending. The defendant asserted that this court had misapprehended the basis for the argument on appeal that counsel had failed to comply with Rule 651(c). The defendant believed that this court had focused on the challenge to the performance of trial counsel, David Landau, and had failed to consider the separate challenges to the performance of counsel at the resentencing hearing, Bjekich and Doyle.

Our earlier decision affirming the denial of post-conviction relief, People v. Szabo, 144 Ill.2d 525, 163 Ill.Dec. 907, 582 N.E.2d 173 (1991), would normally be sufficient to negate any suggestion that the defendant is now entitled to a second opportunity to establish a constitutional defect in the sentencing proceedings. The defendant's first post-conviction petition alleged incompetence by the defendant's trial lawyer and by the two lawyers who represented the defendant at the resentencing hearing. On appeal from the denial of post-conviction relief, the defendant argued before this court that post-conviction counsel had failed to properly substantiate those claims. Szabo, 144 Ill.2d at 532, 163 Ill.Dec. 907, 582 N.E.2d 173. At that time, this court rejected the defendant's challenge to post-conviction counsel's performance, concluding that adequate compliance with Rule 651(c) had been shown. Although the record did not contain an affidavit from...