People v. Turner
| Decision Date | 23 September 1999 |
| Docket Number | No. 79902.,79902. |
| Citation | 241 Ill.Dec. 596,719 N.E.2d 725,187 Ill.2d 406 |
| Parties | The PEOPLE of the State of Illinois, Appellee, v. Robert TURNER, Appellant. |
| Court | Illinois Supreme Court |
Daniel R. Sanders, Office of the State Appellate Defender, Chicago, for Appellant.
James E. Ryan, Attorney General, Springfield, Vincent Moreth, State's Attorney, Carlinville (William L. Browers, Assistant Attorney General, Chicago, of counsel), for the People.
The petitioner, Robert Turner, was convicted of murder, aggravated kidnapping, unlawful restraint, aggravated criminal sexual assault and robbery and was sentenced to death. Petitioner appeals from a Macoupin County circuit court order dismissing his post-conviction petition without an evidentiary hearing. Because petitioner was sentenced to death, this court has jurisdiction over the instant appeal pursuant to Supreme Court Rule 651(a) (134 Ill.2d R. 651(a)). For the following reasons, we now reverse the circuit court and remand with directions.
A jury in the circuit court of Macoupin County convicted petitioner of, inter alia, murder, aggravated criminal sexual assault, aggravated kidnapping and robbery and sentenced petitioner to death. On direct appeal, this court affirmed his convictions, but vacated his death sentence and ordered a new sentencing hearing. People v. Turner, 128 Ill.2d 540, 132 Ill. Dec. 390, 539 N.E.2d 1196 (1989). Petitioner waived his right to be sentenced by a jury, and the trial court once again sentenced petitioner to death. This court affirmed petitioner's sentence on direct appeal (People v. Turner, 156 Ill.2d 354, 189 Ill.Dec. 713, 620 N.E.2d 1030 (1993)), and the United States Supreme Court denied petitioner's petition for writ of certiorari (Turner v. Illinois, 510 U.S. 1013, 114 S.Ct. 606, 126 L.Ed.2d 570 (1993)).
Defendant subsequently filed a pro se post-conviction petition in which he alleged the following constitutional claims. First, petitioner alleged that the State violated his right to due process by failing to seize and disclose to the defense a pair of boots and a knife owned by petitioner's brother Michael Turner. Second, petitioner alleged that the State failed to disclose that it promised Michael Turner favorable treatment in exchange for his testimony against petitioner at trial. Third, petitioner alleged his trial counsel was ineffective for failing to discover and impeach Michael Turner with the evidence withheld by the State and statements Michael Turner made to undisclosed family members and prisoners at the Macoupin County jail. Petitioner's final claim alleged that the Illinois death penalty statute was unconstitutional.
The circuit court appointed David Grigsby as defendant's post-conviction counsel. Grigsby did not file an amended post-conviction petition. No affidavits were attached to the post-conviction petition. The circuit court granted the State's motion to dismiss the post-conviction petition without an evidentiary hearing, holding the claims in the post-conviction petition were barred by res judicata or waived because petitioner could have raised the claims on direct appeal but failed to do so.
Following the dismissal of petitioner's post-conviction petition, this court granted petitioner's motion to remove Grigsby as his attorney and appointed the office of the State Appellate Defender, Capital Litigation Division, to represent petitioner in this appeal.
Petitioner's only argument on appeal is that he was denied his right to reasonable assistance of counsel during the proceedings on his post-conviction petition. Because the right to counsel in post-conviction proceedings is wholly statutory (see 725 ILCS 5/122-4 (West 1998)), post-conviction petitioners are entitled only to the level of assistance provided by the Post-Conviction Hearing Act. People v. Flores, 153 Ill.2d 264, 276, 180 Ill.Dec. 1, 606 N.E.2d 1078 (1992). It is well settled that the Act requires counsel to provide a "reasonable level of assistance" to petitioner in post-conviction proceedings. People v. Owens, 139 Ill.2d 351, 364, 151 Ill.Dec. 522, 564 N.E.2d 1184 (1990); People v. Wright, 149 Ill.2d 36, 64, 171 Ill.Dec. 424, 594 N.E.2d 276 (1992); Flores, 153 Ill.2d at 276,180 Ill.Dec. 1,606 N.E.2d 1078. To that end, Supreme Court Rule 651(c) outlines the specific duties of appointed counsel in post-conviction proceedings. Rule 651(c) requires that the record in post-conviction proceedings demonstrate that appointed counsel "has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional rights, has examined the record of the proceedings at 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 first argues that his counsel's representation was inadequate because counsel only met with petitioner once in the two-year period he represented petitioner and refused to write, accept phone calls or otherwise communicate with petitioner in order to ascertain the constitutional claims in petitioner's pro se post-conviction petition. This court has consistently reversed the dismissal of post-conviction petitions where there is a complete absence of consultation between petitioner and appointed counsel. See, e.g., People v. Wales, 46 Ill.2d 79, 81, 262 N.E.2d 926 (1970); People v. Garrison, 43 Ill.2d 121, 124, 251 N.E.2d 200 (1969); People v. Craig, 40 Ill.2d 466, 469, 240 N.E.2d 588 (1968). Nothing in these cases or Rule 651(c), however, requires appointed counsel to consult with petitioner a certain number of times. People v. Stewart, 121 Ill.2d 93, 103, 117 Ill.Dec. 187, 520 N.E.2d 348 (1988). Rule 651(c) does require that appointed counsel consult with petitioner to ascertain his constitutional claims, but there is no reason as a matter of law why this cannot be accomplished in one meeting with defendant. See Stewart, 121 Ill.2d at 103, 117 Ill.Dec. 187, 520 N.E.2d 348. Petitioner concedes as much in his brief when he acknowledges that this single meeting with appointed counsel "may have satisfied" the consultation requirement in Rule 651(c).
Petitioner next argues that his post-conviction counsel failed to comply with the requirement in Rule 651(c) that he examine the record of the proceedings at trial. Petitioner states that his appointed counsel could not have examined the entire record because transcripts for five dates during defendant's second sentencing proceedings were not included in the record on appeal in this case. Petitioner does not assert that any testimony was elicited on these dates. Instead, the trial court's docket sheet reveals that the trial court heard arguments on motions and issued a certificate of custody to secure defendant's presence at the sentencing hearing. Petitioner places particular emphasis on the fact that there is no transcript in the record for the hearing on August 20, 1990, at which the trial court granted petitioner's waiver of his right to a jury for sentencing.
Counsel's failure to examine the transcripts for these five dates, if they even exist,1 does not violate Rule 651(c). Rule 651(c) requires post-conviction counsel only to examine "as much of the transcript of proceedings as is necessary to adequately present and support those constitutional claims raised by the petitioner." People v. Davis, 156 Ill.2d 149, 164, 189 Ill.Dec. 49, 619 N.E.2d 750 (1993). Petitioner's pro se post-conviction petition did not allege any constitutional violations based on the waiver of his right to a jury at sentencing or any other matters which apparently were discussed on the dates for which the transcripts are not part of the record. To require counsel to examine portions of the record which have no relevance to petitioner's claims would be an exercise in futility.
Petitioner argues that Davis is distinguishable because Davis was not a capital case and pro se post-conviction petitioners have no right to appointed counsel in noncapital cases. This distinction is immaterial. Whether or not a pro se petitioner has a right to appointed counsel, once counsel is appointed, his or her obligations under Rule 651(c) are the same in every case regardless of whether the petitioner has been sentenced to death or not.
Petitioner next argues that his counsel's failure to make any amendments to the pro se post-conviction petition violated Rule 651(c). We agree. There is no requirement that post-conviction counsel must amend a petitioner's pro se post-conviction petition. People v. Spreitzer, 143 Ill.2d 210, 221, 157 Ill.Dec. 467, 572 N.E.2d 931 (1991). Nevertheless, Rule 651(c) plainly requires that appointed post-conviction counsel make "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); see also People v. Johnson, 154 Ill.2d 227, 238, 182 Ill.Dec. 1, 609 N.E.2d 304 (1993) ().
In this case, the trial court held that the claims in petitioner's post-conviction petition were waived because they could have been raised on direct appeal but were not. There is, however, an exception to the waiver doctrine in post-conviction proceedings. If petitioner's counsel had amended the post-conviction petition to allege ineffective assistance of appellate counsel for failing to raise petitioner's claims on direct appeal, these claims would not have been barred by waiver. Flores, 153 Ill.2d at 277, 180 Ill.Dec. 1, 606 N.E.2d 1078 (); People v. Whitehead, 169 Ill.2d 355, 371, 215 Ill.Dec. 164, 662 N.E.2d 1304 (1996); People v. Moore, 177 Ill.2d 421, 428, 226...
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