People v. Wilder

• Decision Date: 31 March 2005
• Docket Number: No. 1-03-3038.,1-03-3038.
• Citation: 292 Ill.Dec. 640,356 Ill. App.3d 712,826 N.E.2d 1076
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Enoch WILDER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

826 N.E.2d 1076

356 Ill. App.3d 712

292 Ill.Dec. 640

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Enoch WILDER, Defendant-Appellant.

No. 1-03-3038.

Appellate Court of Illinois, First District, Fourth Division.

March 31, 2005.

Rehearing Denied April 29, 2005.

Michael J. Pelletier, State Appellate Defender, Pamela Z. O'Shea, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Defendant-Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, Nancy Colletti, Ljubica D. Popovic, of counsel), for Plaintiff-Appellant.

Justice GREIMAN delivered the opinion of the court:

Defendant Enoch Wilder appeals from an order of the circuit court dismissing his pro se petition for postconviction relief. For the reasons that follow, we affirm.

Defendant was initially convicted of first degree murder, armed robbery, and aggravated kidnaping and sentenced to 45 years' imprisonment for murder and 15 years each for armed robbery and aggravated kidnaping, the latter two sentences to run concurrently to each other and consecutive to the former. At trial, several witnesses testified that a group of men participated in the robbery of a garage and the related murder of Robbie Barrett. Defendant was apprehended during the investigation of a separate offense and confessed to his involvement in the robbery and murder.

On direct appeal, defendant sought reversal arguing that evidence of his gang membership was improperly admitted at trial, that the trial court prejudiced him when it failed to grant him a continuance in order to obtain civilian clothing during jury selection, and that the trial court improperly imposed consecutive sentences under section 5-8-4(b) of the Unified Code of Corrections. 730 ILCS 5/5-8-4(b) (West 1998). This court affirmed defendant's convictions, finding that evidence of defendant's gang membership was not improper and that the trial court was not required to grant a continuance for him to obtain a change of clothes. However, we vacated defendant's consecutive sentences, finding that section 5-8-4(b) was unconstitutional, and ordered that all three of his sentences were to run concurrently. People v. Wilder, 321 Ill.App.3d 608, 255 Ill.Dec. 256, 749 N.E.2d 357 (2001), appeal denied and judgment vacated by People v. Wilder, 195 Ill.2d 596, 255 Ill.Dec. 502, 749 N.E.2d 984 (2001)

. On appeal, the Illinois Supreme Court reversed and ordered that we reconsider our judgment in light of its holding in People v. Wagener, 196 Ill.2d 269, 256 Ill.Dec. 550, 752 N.E.2d 430 (2001) (holding section 5-8-4(b) constitutional). On remand, this court affirmed defendant's convictions, but vacated the trial court's imposition of consecutive sentences and remanded for further proceedings as to the factual circumstances surrounding the commission of the offenses for which defendant was convicted. People v. Wilder, 325 Ill.App.3d 987, 260 Ill.Dec. 79, 760 N.E.2d 496 (2001). On remand, the trial court ordered that all three of defendant's sentences were to run concurrently.

In March 2003, defendant filed the instant postconviction petition, alleging that his arrest for an unrelated offense and which ultimately led to his confession was unlawful; that the prosecutor misstated evidence during closing arguments; that the jury was not given proper instructions; that his trial and appellate counsel failed to preserve the jury instructions as an issue for appeal; that one of the State's witnesses testified falsely; that the trial court improperly admitted an ammunition cartridge that was not connected to defendant or the offenses for which he was prosecuted; that his conviction for aggravated kidnaping was improper because it was incidental to the armed robbery; that the trial court improperly admitted evidence of defendant's gang affiliation as well as evidence of other crimes; that his confession was coerced; that his trial attorney was ineffective; that his confession was insufficient as evidence to sustain his convictions; and that his appellate counsel failed to advise him of his appellate rights following his direct appeal.

Defendant based several of his claims on this court's decision concerning the appeal of one of his codefendants, Fredeal Truidallie, where, in an unpublished order, we found that the gang membership evidence introduced at trial concerned other individuals involved in the offense rather than Truidallie, that other evidence was not properly admitted, and, in dicta, that the circumstances surrounding the offense did not appear to satisfy the elements necessary for a guilty finding on aggravated kidnaping. People v. Truidallie, No. 1-99-3679, 325 Ill.App.3d 1176, 284 Ill.Dec. 674, 810 N.E.2d 327 (2001) (unpublished order under Supreme Court Rule 23). For those and several other reasons, we reversed Truidallie's convictions and remanded for a new trial. On remand, Truidallie was convicted of murder and armed robbery.

The trial court summarily dismissed defendant's petition as frivolous and patently without merit, finding that the issue of admitting evidence of defendant's gang membership at trial had already been raised and considered on direct appeal and was therefore barred under res judicata. The court also pointed out that Truidallie had been tried separately from defendant and that the gang evidence admitted against him concerned other individuals implicated in the offense, not Truidallie himself. The court further found that the issues of the ammunition and defendant's conviction for aggravated kidnaping could have and should have been raised on direct appeal and therefore were subject to waiver; that the propriety of his arrest and the admissibility of his statement had been addressed during trial and could have been addressed on direct appeal; that the allegations of misstatements by the prosecutor and jury instructions lacked any factual support and legal authority; that his allegation of false testimony by a State witness lacked factual support; that other evidence adduced at trial was sufficient to support his convictions; and that defendant's appellate counsel was not ineffective for failing to raise every issue defendant had raised in a motion for new trial. Defendant now appeals.

The Post-Conviction Hearing Act (Act) provides defendants with a means of challenging their convictions or sentences for violations of their constitutional rights that could not have been raised on direct appeal. 725 ILCS 5/122-1 et seq. (West 2002). The Act establishes a three-stage process for adjudication of a postconviction petition. At the first stage, the trial court determines whether the defendant's allegations sufficiently demonstrate a constitutional violation that would necessitate relief, and it may summarily dismiss the petition upon finding that it is frivolous and patently without merit. People v. Coleman, 183 Ill.2d 366, 380, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998); 725 ILCS 5/122-2.1(a)(2) (West 2002). All well-pled allegations are to be taken as true and liberally construed, unless contradicted by the record. Coleman, 183 Ill.2d at 381-82, 233 Ill.Dec. 789, 701 N.E.2d 1063. A petition is considered frivolous and patently without merit where its allegations fail to present the gist of a meritorious constitutional claim. People v. Edwards, 197 Ill.2d 239, 244, 258 Ill.Dec. 753, 757 N.E.2d 442 (2001). This court reviews the summary dismissal of a petition for postconviction relief de novo. Coleman, 183 Ill.2d at 388-89,

233 Ill.Dec. 789,

701 N.E.2d 1063.

On appeal, defendant initially contends that the trial court erred in summarily dismissing his petition where it contained the gist of several meritorious constitutional claims, arguing that this court recognized similar errors in reversing codefendant Truidallie's convictions. First, he argues that his appellate counsel was ineffective for failing to raise the issue of his conviction for aggravated kidnaping, especially given our disposition of a similar contention in Truidaillie's appeal, and that appellate counsel was ineffective for not raising the issue of his trial counsel's failure to introduce police reports concerning the identification of the van used in the robbery. He also contends that the trial court erred in dismissing several of his claims on the grounds of waiver and res judicata, arguing that procedural grounds may not serve as the basis for summary dismissal of postconviction claims.

We first address the procedural aspects of defendant's appeal. A postconviction action is a collateral attack on a prior conviction and sentence, and the scope of such a proceeding is generally limited to constitutional matters that have not been, or could not have been, previously adjudicated. People v. Rissley, 206 Ill.2d 403, 411-12, 276 Ill.Dec. 821, 795 N.E.2d 174 (2003). Any issues raised in a postconviction petition that could have been raised on direct appeal, but were not, are procedurally defaulted. Rissley, 206 Ill.2d at 412, 276 Ill.Dec. 821, 795 N.E.2d 174. There exists a split of authority within our own appellate district as to the ability of trial courts to summarily dismiss postconviction petitions on purely procedural bases. While all divisions concur with and follow our supreme court's holding in People v. Boclair, 202 Ill.2d 89, 273 Ill.Dec. 560, 789 N.E.2d 734 (2002), that untimeliness may not serve as the sole basis for the summary dismissal of a postconviction petition, some divisions have ruled that postconviction claims may be subject to both waiver and res judicata, while others have held that petitions may be summarily dismissed on the basis of res judicata but not on the basis of waiver.

The third division has held that, in general, a trial court may not summarily dismiss a postconviction petition on solely procedural bases, such as untimeliness, waiver, or res judicata. People v. McGhee, 337 Ill.App.3d 992, 272 Ill.Dec. 509, 787 N.E.2d 324 (2003)

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