People v. Tate

• Decision Date: 29 November 2012
• Docket Number: No. 112214.,112214.
• Citation: 980 N.E.2d 1100,366 Ill.Dec. 741,2012 IL 112214
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Douglas TATE, Appellant.
• Court: Illinois Supreme Court

2012 IL 112214

980 N.E.2d 1100

366 Ill.Dec. 741

The PEOPLE of the State of Illinois, Appellee,

v.Douglas TATE, Appellant.

No. 112214.

Supreme Court of Illinois.

Nov. 29, 2012.

Daniel S. Alexander, Chicago, for appellant.

Lisa Madigan, Attorney General, Springfield, and Anita Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Michele Grimaldi Stein and Joseph A. Alexander, Assistant State's Attorneys, of counsel), for the People.

Justice FREEMAN delivered the judgment of the court, with opinion.

¶ 1 Petitioner, Douglas Tate, filed a postconviction petition in the circuit court of Cook County. The appellate court affirmed the circuit court's summary dismissal. No. 1–09–2379 (unpublished order under Supreme Court Rule 23 ). We granted leave to appeal, and now reverse the judgment of the appellate court and remand to the circuit court for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 Tate's conviction arose from the August 2001 murder of Maurice Wesley in Chicago. Tate's bench trial, which began in June 2005, presented the testimony of four eyewitnesses who identified him as the shooter. Police found four spent shell casings at the scene of the crime, but no gun. The parties stipulated that the casings yielded no latent fingerprint impressions suitable for comparison. The medical examiner testified Wesley died of multiple gunshot wounds. His wounds were consistent with eyewitness accounts of the manner in which he was shot. The trial judge found Tate guilty of first degree murder and aggravated discharge of a firearm, and sentenced him to 50 years' imprisonment. The appellate court affirmed. People v. Tate, No. 1–07–1094, 386 Ill.App.3d 1119, 361 Ill.Dec. 258, 970 N.E.2d 624 (2008) (unpublished order under Supreme Court Rule 23 ).

¶ 4 In his postconviction petition, which was filed through private counsel, Tate alleged his trial counsel was ineffective for failing to call four witnesses, two of whom Tate claimed could establish an alibi. Tate also alleged actual innocence, based on the same four affidavits. Attached to the postconviction petition were Tate's own affidavit; the affidavit of Tina Louise Tate (Tina), his girlfriend at the time of the shooting and, since July 2006, his wife; the affidavit of Tina's cousin and roommate, Marilyn Pass; and the affidavits of occurrence witnesses Charles Hebron and Shevell Wilson.

¶ 5 In his affidavit, Tate averred that he spent the night before the shooting with Tina and remained at her apartment until 10:00 or 11:00 the following night. The affidavits of Tina and Pass provided support for this alibi: each averred Tate spent that night at Tina's apartment and did not leave until 10:00 or 11:00 the next night. Wilson stated in his affidavit that at the time of the shooting, he did not see Tate anywhere near the corner where the incident occurred. Hebron's affidavit averred that he was five feet from the victim at the time of the shooting, he witnessed the shooting, he had known Tate for years, and he was sure Tate was not the shooter.

¶ 6 The circuit court summarily dismissed Tate's postconviction petition without comment. The appellate court affirmed. No. 1–09–2379 (unpublished order under Supreme Court Rule 23 ).

¶ 7 II. ANALYSIS

¶ 8 The Post–Conviction Hearing Act (Act) ( 725 ILCS 5/122–1 et seq. (West 2008)) provides a method by which persons under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both. People v. Hodges, 234 Ill.2d 1, 9, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009) ; People v. Peeples, 205 Ill.2d 480, 509, 275 Ill.Dec. 870, 793 N.E.2d 641 (2002). A postconviction action is not an appeal from the judgment of conviction, but is a collateral attack on the trial court proceedings. Thus, issues raised and decided on direct appeal are barred by res judicata, and issues that could have been raised but were not are forfeited. An action for postconviction relief is initiated by the person under criminal sentence, who files a petition in the circuit court in which the original proceeding took place. As a result, most such petitions are filed pro se by persons who are incarcerated and lack the means to hire their own attorney.

¶ 9 In a noncapital case, a postconviction proceeding contains three stages. At the first stage, the circuit court must independently review the petition, taking the allegations as true, and determine whether " ‘the petition is frivolous or is patently without merit.’ " Hodges, 234 Ill.2d at 10, 332 Ill.Dec. 318, 912 N.E.2d 1204 (quoting 725 ILCS 5/122–2.1(a)(2) (West 2006)). A petition may be summarily dismissed as frivolous or patently without merit only if the petition has no arguable basis either in law or in fact. Hodges, 234 Ill.2d at 11–12, 332 Ill.Dec. 318, 912 N.E.2d 1204. This first stage in the proceeding allows the circuit court "to act strictly in an administrative capacity by screening out those petitions which are without legal substance or are obviously without merit." People v. Rivera, 198 Ill.2d 364, 373, 261 Ill.Dec. 336, 763 N.E.2d 306 (2001). Because most petitions are drafted at this stage by defendants with little legal knowledge or training, this court views the threshold for survival as low. At this initial stage of the proceeding, there is no involvement by the State.

¶ 10 If the circuit court does not dismiss the petition as "frivolous or * * * patently without merit" ( 725 ILCS 5/122–2.1(a)(2) (West 2008)), the petition advances to the second stage, where counsel may be appointed to an indigent defendant ( 725 ILCS 5/122–4 (West 2008) ), and where the State, as respondent, enters the litigation (725 ILCS 5/ 122–5 (West 2008)). It is at this point, not the first stage, where the postconviction petition can be said to be at issue, with both sides engaged and represented by counsel. See 725 ILCS 5/122–4, 122–5, 122–6 (West 2008). At this second stage, the circuit court must determine whether the petition and any accompanying documentation make "a substantial showing of a constitutional violation." People v. Edwards, 197 Ill.2d 239, 246, 258 Ill.Dec. 753, 757 N.E.2d 442 (2001) (citing People v. Coleman, 183 Ill.2d 366, 381, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998) ). If no such showing is made, the petition is dismissed. Edwards, 197 Ill.2d at 246, 258 Ill.Dec. 753, 757 N.E.2d 442. If, however, a substantial showing of a constitutional violation is set forth, the petition is advanced to the third stage, where the circuit court conducts an evidentiary hearing. Id.; 725 ILCS 5/122–6 (West 2008). The summary dismissal of a postconviction petition is reviewed de novo. People v. Brown, 236 Ill.2d 175, 184, 337 Ill.Dec. 897, 923 N.E.2d 748 (2010).

¶ 11 In the case at bar, the State notes that Tate's petition was prepared by privately retained counsel, and argues that, as such, it must make a "substantial showing of a constitutional violation" (Edwards, 197 Ill.2d at 246, 258 Ill.Dec. 753, 757 N.E.2d 442), as opposed to simply clearing the "frivolous or * * * patently without merit" hurdle.

¶ 12 The State's argument is unpersuasive. Under the State's proposal, a first-stage postconviction petition prepared by an attorney would essentially be required to make a substantial showing of a constitutional violation, which is the standard at the second stage, after the State has entered the litigation. This second-stage standard is inappropriate at the first stage, where the State has no involvement ( 725 ILCS 5/122–5 (West 2008) ) and where the petition cannot be said to be at issue. The State nevertheless argues that because some first-stage petitions are prepared by counsel and others are pro se, both the lower standard (for pro se petitions) and the higher standard (for attorney-prepared petitions) must apply at the first stage of the proceeding. The State thus would add complexity to a stage where, as noted, the court acts "strictly in an administrative capacity by screening out those petitions which are without legal substance or are obviously without merit" (Rivera, 198 Ill.2d at 373, 261 Ill.Dec. 336, 763 N.E.2d 306). In the process, the State would necessarily alter the three-stage postconviction structure set forth in the Act. 725 ILCS 5/122–2.1(a)(2), (b) (West 2008). We decline the State's invitation to take this step.

¶ 13 Before we address Tate's contentions, we first dispose of the State's assertion that Tate's ineffective assistance claims are forfeited because he did not include them in his posttrial motion.

¶ 14 As noted, Tate alleged his trial counsel was ineffective for failing to call four witnesses whose affidavits were attached to his petition. Tate's ineffective-assistance claims thus are based on what trial counsel should have done, not on what counsel did. An ineffective assistance claim based on what the record discloses counsel did, in fact, do is subject to the usual procedural default rule. People v. Erickson, 161 Ill.2d 82, 88, 204 Ill.Dec. 231, 641 N.E.2d 455 (1994). "But a claim based on what ought to have been done may depend on proof of matters which could not have been included in the record precisely because of the allegedly deficient representation." Id. Thus, this court has "repeatedly noted that a default may not preclude an ineffective-assistance claim for what trial counsel allegedly ought to have done in presenting a defense." People v. West, 187 Ill.2d 418, 427, 241 Ill.Dec. 535, 719 N.E.2d 664 (1999).

¶ 15 In the case at bar, none of the four witnesses were called to testify. As a result of counsel's allegedly deficient representation, the contents of their affidavits could not have been included in the record. In this situation, forfeiture does not preclude Tate's claims that counsel was ineffective for failing to call these witnesses, even though they were not included in Tate's posttrial motion. Cf. Erickson, 161 Ill.2d at 86–88, 204 Ill.Dec. 231, 641...