People v. Wallace

• Citation: 2016 IL App (1st) 142758,67 N.E.3d 976
• Decision Date: 16 November 2016
• Docket Number: No. 1–14–2758.,1–14–2758.
• Parties: The PEOPLE of the State of Illinois, Respondent–Appellee, v. Kevin WALLACE, Petitioner–Appellant.
• Court: United States Appellate Court of Illinois

2016 IL App (1st) 142758

67 N.E.3d 976

The PEOPLE of the State of Illinois, Respondent–Appellee,

v.Kevin WALLACE, Petitioner–Appellant.

No. 1–14–2758.

Appellate Court of Illinois, First District, Third Division.

Nov. 16, 2016.

Michael J. Pelletier, Patricia Mysza, and Kate E. Schwartz, of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Brian K. Hodes, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 Defendant Kevin Wallace appeals from the second-stage dismissal of his amended petition for relief under the Post–Conviction Hearing Act (Act). 725 ILCS 5/122–1 et seq. (West 2012). Defendant contends, for the first time on appeal, that his negotiated concurrent sentences for first degree murder and arson are void because relevant statutes mandate consecutive sentences. He argues that he may challenge his sentence at any time under the void sentence rule and that our supreme court's recent abolishment of that rule in People v. Castleberry, 2015 IL 116916, 398 Ill.Dec. 22, 43 N.E.3d 932, cannot be applied retroactively to his case. Defendant also contends that postconviction counsel provided unreasonable assistance for failing to attach relevant evidence to his petition and failing to amend the petition to overcome a procedural bar. We affirm.

¶ 2 I. BACKGROUND

¶ 3 Following the death of defendant's father, Ronald Wallace, defendant was charged with 18 counts of first degree murder, two counts of aggravated arson, one count of residential arson, one count of armed robbery, and one count of robbery. On February 25, 2008, defendant entered a negotiated guilty plea to one count of first degree murder and one count of residential arson with concurrent 40–year and 10–year sentences, respectively. During the hearing on the negotiated plea, the trial court asked the defendant if he understood the nature of the charges and the rights he was relinquishing by pleading guilty. Defendant answered affirmatively to each question. The trial court also asked defendant, "Are you under the influence of any drugs or alcohol at this time?" He replied, "No, sir." Following the State's recitation of a stipulated factual basis, the court accepted defendant's guilty plea and sentenced him to the agreed upon concurrent sentences. Defendant did not file a motion to withdraw his guilty plea and did not file a direct appeal.

¶ 4 Defendant filed a pro se postconviction petition pursuant to the Act on July 10, 2013. In the petition, defendant alleged, inter alia, that his plea was "the result of his mental condition and psychological pressure," that he "was not reasoning properly for a plea," and that he was "under psychotropic medication treatment" and had been "on psychotropic medications since the age of 13." He further alleged that his trial counsel was constitutionally ineffective for failing to investigate "the mental health and drug's [sic ] abuse issue." Defendant attached supporting affidavits from Keith Wallace and Dorothy Wallace to his petition.¹ Keith averred that defendant had been "on and off of several different psychotropic medications since before his incarceration" and "during the year of his trial, [defendant] often sounded over-medicated and unable to carry on a conversation. During court appearances [defendant] seemed unaware and disconnected." Dorothy averred that defendant was on "Ritilon" as a child and saw a psychiatrist when he was older. She was "not sure exactly what he was on, but they tried several different ones that didn't seem to help him." Defendant subsequently refiled his petition and newly attached various medical records from his incarceration, dating from 2011 to 2012.

¶ 5 The trial court docketed defendant's petition on August 30, 2013, and appointed an attorney to represent him. Postconviction counsel filed a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) on December 5, 2013. In the certificate, counsel asserted that she had consulted with defendant by phone and letter to ascertain his contentions, examined the "report of proceedings and relevant documents" concerning defendant's plea and sentencing, and examined defendant's petition and the documents attached to it. She also asserted that she had reviewed documents in defendant's file and attached those relevant to her certificate. The attached documents included two orders by the trial court directing a hospital and correctional center to release defendant's medical records, subpoenas to the hospital and correctional center, and a transcript from court proceedings prior to defendant's plea. The transcript reflects that defendant was not present in court due to his hospitalization and that the State tendered 452 pages of mental health records and intended to tender three additional sets of records. Counsel concluded that the petition adequately presented his claims and it was not necessary to make any amendments.

¶ 6 On February 11, 2014, defendant attempted to file a pro se amendment to his petition, alleging, inter alia, that trial counsel was ineffective for failing to request a fitness hearing at the time of his guilty plea. The trial court denied defendant leave to file the amendment. The court subsequently questioned postconviction counsel about the amendment and counsel stated that she was aware of the amendment but declined to adopt it.

¶ 7 Three days later, the State filed a motion to dismiss the petition arguing that the petition was untimely and lacked merit because defendant's assertions were rebutted by the record and the defendant's medical records for years after his plea were irrelevant to his fitness at the time of his plea. Postconviction counsel responded that the petition's lateness should be excused "because of the submitted documents at the negotiated plea of guilty which recognized his mental illness." Counsel also argued that the petition had merit because defendant's one-word answers to the trial court's admonishments did not allow the court to adequately determine his competency to plead.

¶ 8 The trial court granted the State's motion to dismiss, finding that nothing during the plea hearing indicated that defendant was under the influence of psychotropic drugs or raised a bona fide doubt about his fitness. The court also found that trial counsel's challenged actions were trial strategy and therefore not ineffective representation. Finally, the trial court explicitly stated that it was dismissing the petition "without addressing the timeliness issue." Defendant appeals.

¶ 9 II. ANALYSIS

¶ 10 A. Sentencing Claim

¶ 11 For the first time on appeal, defendant contends that his agreed upon concurrent sentences are void because relevant sentencing statutes mandate consecutive sentences, and therefore, his case must be remanded for resentencing. Acknowledging that he failed to raise this issue in his postconviction petition, defendant argues that he may still challenge his sentence because a void sentence may be attacked at any time, citing People v. Marshall, 242 Ill.2d 285, 302, 351 Ill.Dec. 172, 950 N.E.2d 668 (2011), and that case's predecessors.

¶ 12 Before addressing the merits of defendant's claim, we must first determine whether it has been waived. The State argues that defendant has waived his sentencing claim by failing to raise it in his petition. It further argues that the void sentence rule, upon which defendant relies to overcome his waiver, was abolished by our supreme court's recent ruling in Castleberry, 2015 IL 116916, 398 Ill.Dec. 22, 43 N.E.3d 932.² Defendant acknowledges Castleberry, but argues that the case established a new rule which cannot be retroactively applied to his claims because his conviction was final prior to the supreme court's opinion in Castleberry.

¶ 13 Typically, a defendant waives any claim not raised in his or her postconviction petition. People v. Jones, 211 Ill.2d 140, 148, 284 Ill.Dec. 287, 809 N.E.2d 1233 (2004) ; see also 725 ILCS 5/122–3 (West 2012). Yet, in People v. Arna, 168 Ill.2d 107, 212 Ill.Dec. 963, 658 N.E.2d 445 (1995), our supreme court established the rule that "[a] sentence which does not conform to a statutory requirement is void" and consequently, an appellate court could correct a void sentence at anytime. Id. at 113, 212 Ill.Dec. 963, 658 N.E.2d 445. Thus, under the rule established in Arna, a claim that a sentence is void was not subject to waiver. People v. Thompson, 209 Ill.2d 19, 27, 282 Ill.Dec. 183, 805 N.E.2d 1200 (2004). The void sentence rule allowed a defendant to raise such an issue on appeal from postconviction proceedings under the Act, regardless of whether the claim was included in the underlying petition. Id. at 26–27, 282 Ill.Dec. 183, 805 N.E.2d 1200. However, during the pendency of the current appeal, the supreme court rendered its opinion in Castleberry, and explained that whether a court order is void depends solely on whether the court had jurisdiction.

Castleberry, 2015 IL 116916, ¶ 11, 398 Ill.Dec. 22, 43 N.E.3d 932. Accordingly, a sentence which does not conform to a statutory requirement, but which is entered by a court with jurisdiction, is merely voidable. See id. The court explained that it was "abolish[ing]" the void sentence rule established in Arna. Id. ¶ 19. The question of waiver, therefore, depends solely on whether the ruling in Castleberry applies to defendant.

¶ 14 A new rule of criminal procedure is generally applicable to all cases pending on direct review, but not applicable to cases brought on collateral review. People v. Smith, 2015 IL 116572, ¶ 24, 389 Ill.Dec. 245, 26 N.E.3d 335. In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the United States Supreme Court established two exceptions to the bar on retroactive application of new rules in collateral challenges: where the rule (1) places certain private...