People v. Pendleton ( 2006 )

Docket No. 100493.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
PHILBERT PENDLETON, Appellee.
Opinion filed December 21, 2006.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
and Garman concurred in the judgment and opinion.
Justice Burke took no part in the decision.
OPINION
Pursuant to a plea agreement, defendant, Philbert Pendleton, pled
guilty in the circuit court of Ogle County to two counts of home
invasion and two counts of aggravated criminal sexual assault. In
exchange for the guilty pleas, the State agreed not to charge petitioner
with an unrelated offense. No agreement was reached as to sentence.
The circuit court subsequently sentenced defendant to consecutive
terms of 15 years for the first count of home invasion, 30 years for the
second, and 30 years for one of the aggravated criminal sexual assault
counts. Neither a postjudgment motion nor a notice of appeal was
filed. Nearly a year after sentencing, defendant filed a pro se
postconviction petition. Counsel was appointed for defendant and
subsequently filed an amended petition on his behalf. The circuit court
denied defendant postconviction relief, and he appealed. The appellate
court reversed and remanded. 356 Ill. App. 3d 863. The appellate
court found that an admonishment issue, which was raised for the first
time on appeal, had been forfeited, but the court concluded that
remand was nonetheless necessary because postconviction counsel
had rendered deficient, unreasonable assistance in postconviction
proceedings. 356 Ill. App. 3d at 870-71. We allowed the State’s
petition for leave to appeal (177 Ill. 2d R. 315(a)), and now reverse
the judgment of the appellate court. The following facts are pertinent
to our disposition.
BACKGROUND
On August 31, 2001, defendant pled guilty to two counts of home
invasion (720 ILCS 5/12–11(a)(2) (West 2000)) and two counts of
aggravated criminal sexual assault (720 ILCS 5/12–14(a)(2), (a)(5)
(West 2000)) in exchange for the State’s agreement not to charge him
with an unrelated offense he allegedly committed in 1997. No
agreement was reached as to sentence.
Prior to taking defendant’s guilty pleas, the circuit court
conducted meticulous inquiries and admonishments pursuant to
Supreme Court Rule 402 (177 Ill. 2d R. 402) in order to ensure that
defendant’s guilty pleas were informed, knowing, and voluntary. We
set forth, at length, portions of the colloquy between defendant and
the court.
The circuit court first asked defendant if he was “in good health
physically and mentally,” to which defendant responded affirmatively.
Defendant said he was not taking any prescription drugs or
medication. The court then read the charges to defendant and asked
if he understood them. Defendant indicated he understood; in fact, he
took exception to the language of count I, and that charge was
amended to comport with defendant’s version of events.
Thereafter, sentencing options were explained to defendant. The
court told defendant:
“First three [counts] you could be subject to an extended
term in the Department of Corrections, also that would be
from 30 to 60 years based on the aggravating factor of the age
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of the victims being over 60 years ***. There is a minimum
mandatory six-year prison sentence involved in regard to all of
these offenses, do you understand that?”
Defendant indicated he understood. The court then advised defendant
“there would be a three year mandatory supervised release period”
upon his release from prison. Defendant again indicated he
understood. Pursuant to the State’s request, the court addressed the
possibility of consecutive sentencing:
“THE COURT: Mr. Pendleton. If, in fact, it is determined
that under Counts II and III, were [sic] part of a single course
of conduct, there’s no substantial change in the criminal
objective, and whether there is either severe bodily injury or
criminal sexual assault then under Counts II and III it would
be required of me if those findings are shown at the sentencing
hearing [that] you receive consecutive sentences, that means
one sentence ends, the other begins, you will not serve them
at the same time. Do you understand that?
THE DEFENDANT: Yes, sir.
***
THE COURT: Also discretionary consecutive sentences
in regard to all charges, that would be up to the court at the
time of the sentence, do you understand that?
THE DEFENDANT: Yes, sir.”
After giving defendant those admonishments, the court proceeded,
first, to inform defendant of the rights he would give up by pleading
guilty and, second, to ascertain that defendant had consulted with
counsel:
“THE COURT: All right. You also understand that if you
plead guilty today you give up certain rights? You give up the
right to have a trial before a judge or jury; you give up the
right to meet and confront the witnesses against you and
present evidence in your own behalf; and the right to remain
silent and make the State prove this charge against you
beyond a reasonable doubt. Do you understand the rights
you’d be giving up today if you plead guilty?
THE DEFENDANT: Yes, sir.
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THE COURT: Do you understand there will be no trial in
any of these charges if you plead guilty?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Have you had a chance to talk to
[defense counsel] about this?
THE DEFENDANT: Yes, sir.
THE COURT: And you’ve had some considerable time
with him talking about it over the days?
THE DEFENDANT: Yes.
THE COURT: Do you have any other questions you want
to ask [defense counsel] today before we proceed any further?
THE DEFENDANT: No, sir.
THE COURT: You have a clear understanding where
we’re at right now?
THE DEFENDANT: Yes, sir.”
With that, the court asked defendant, successively, with respect to
each charge, how he pled, guilty or not guilty. Defendant, without
hesitation, pled guilty to each charge. The court then asked defendant
whether he was pleading guilty to each of those charges of his “own
free will,” and defendant again responded affirmatively. When asked
if anyone had threatened him to get him to plead guilty, defendant
stated, “Not at all.” When the court inquired whether there had been
any promises made to him to get him to plead guilty, defendant
responded negatively. At that point in the proceedings, the State
interrupted for purposes of clarification, noting the State’s agreement
not to charge defendant with an unrelated offense he allegedly
committed in 1997. The court then asked defendant, “That’s been told
to you Mr. Pendleton?” Defendant confirmed that was part of the plea
agreement.
At the court’s request, the prosecutor provided a factual basis as
to each charge. Defense counsel stipulated that would be the State’s
evidence. Thereupon, the circuit court found factual bases for the
guilty pleas, found that the defendant’s pleas were knowing and
voluntary, and accepted defendant’s guilty pleas, setting the matter
over for a sentencing hearing.
Since defendant raised no sentencing issue in the appellate court,
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and he advances no claim of sentencing error in briefs or oral
argument before this court, there is no need to recount the events of
defendant’s sentencing hearing. Suffice it to say that a sentencing
hearing was conducted on November 8, 2001, and, at the conclusion
of that hearing, the circuit court imposed a 75-year aggregate prison
sentence, consisting of consecutive terms of 15 years for the first
home invasion count, 30 years for the second home invasion count,
and 30 years for one of the aggravated criminal sexual assault counts.
After sentencing defendant, the circuit court advised him as follows:
“You have the right to appeal the sentence which I have
imposed here today. You have the right to ask me to
reconsider the sentence. You have the right to file a motion
within 30 days and [defense counsel] can assist you in that. If
you want me to reconsider the sentence, you file the motion
within 30 days.
If you want to appeal the sentence you have the right to
have a lawyer and a transcript of everything I’ve done here. If
you can’t afford those you can have those free of charge.
Any claim of error that you want to raise on appeal has to
be put into that written motion filed within the next 30 days or
you can’t bring it up on appeal. That’s all for today.”
Defendant did not file a postjudgment motion or a notice of
appeal. However, the common law record indicates that defendant
sent a letter to the circuit clerk of Ogle County in June of 2002,
inquiring about the status of his appeal. In that letter, defendant stated
that he had instructed his public defender “to appeal” his “conviction
and sentence.” Defendant said he had not heard from the Office of the
State Appellate Defender and he was thus “concerned” because he did
not know whether his case was “under appeal.” Defendant asked the
circuit clerk to send him a status report of his case. In his letter of
June 2002, defendant did not mention a motion to withdraw guilty
plea or suggest that he had asked trial counsel to file one.
The next document appearing in the common law record is
defendant’s pro se postconviction petition, which bears a file stamp of
October 30, 2002. In that petition, defendant alleged that improper
evidence was presented at his sentencing hearing and that trial counsel
was ineffective insofar as counsel did not object to that evidence.
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Defendant also claimed he had “informed his counsel that he wished
to withdraw his guilty plea and *** asked counsel to file the
appropriate papers.” He contended, inter alia, that trial counsel “was
ineffective *** for failing to file a motion to withdraw and vacate his
guilty plea.” Defendant did not suggest that his guilty pleas were not
knowingly and voluntarily entered. He did not specify any basis for
withdrawal of his guilty plea.
The circuit court appointed counsel to represent defendant, and,
on April 21, 2003, counsel filed an amended postconviction petition
on defendant’s behalf. At the time he submitted defendant’s amended
postconviction petition, counsel filed a certificate of compliance
pursuant to Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). The
certificate recited that counsel had (1) consulted with the defendant
“to ascertain his contentions of deprivation of constitutional right,” (2)
“examined the record of the proceedings at the trial,” and (3) “made
any necessary amendments to the petition filed pro se.” In the
amended petition, counsel “incorporate[d] all allegations contained in
the previously filed pro se petition” and, “in addition to” those
allegations, alleged that trial counsel had rendered ineffective
assistance insofar as counsel had (1) failed to provide sufficient
information to an expert psychologist who testified for the defense at
the sentencing hearing; and (2) allowed defendant to testify at the
sentencing hearing that he had committed other uncharged criminal
offenses. Neither the original petition, nor the amended petition, raised
an admonishment issue. The State filed an answer to the petitions,
requesting dismissal of the petitions and “such other relief as is just.”
At a May 21, 2003, hearing on defendant’s petitions–conducted
by the same judge who had taken defendant’s plea and had
subsequently sentenced him–postconviction counsel first confirmed
that the circuit court had before it transcripts from defendant’s guilty
plea and subsequent sentencing, and then asked the court to take
judicial notice of those transcripts. Counsel, with defendant present,
indicated he would present no additional evidence and would confine
his argument to points in the amended petition relating to defendant’s
sentencing hearing. With respect to defendant’s original, pro se
petition, counsel stated:
“Mr. Pendleton’s original petition is incorporated herein, and
we would rest on the argument made in the memorandum of
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law in support of that post-conviction petition as signed and
sworn to by Mr. Pendleton.”
In the memorandum supporting his pro se postconviction petition,
defendant argued only sentencing error, and the only relief he
requested was an “evidentiary hearing or a new sentencing hearing.”
After counsel finished his argument on points raised in the amended
petition, the State responded by first addressing matters raised in
defendant’s pro se petition:
“I’m going to start at the beginning of the first petition that
was filed by Mr. Pendleton, if I could go in order. As to 2(a)
[of the pro se petition], the allegation that it is a violation of
his rights that after the plea was entered and the sentence
imposed that he informed his counsel he wished to withdraw
his guilty plea and that he asked counsel to file the appropriate
papers. I know [postconviction counsel] did not argue these
two points in this petition directly. However, because my
understanding is that they still remain a part of this petition, I
do want to at least briefly address them.”
Citing this court’s decision in People v. Edwards, 197 Ill. 2d 239
(2001), the State argued it is not enough for a defendant in the second
stage of postconviction proceedings to simply allege that he asked trial
counsel to file a motion to withdraw his guilty plea and pursue an
appeal, and that counsel failed to do so. Quoting from Edwards, the
State noted that such a defendant must provide “some explanation of
the grounds that could have been presented in the motion to withdraw
the plea.” See Edwards, 197 Ill. 2d at 257-58. With that observation,
the State went on to address claims of ineffective assistance of counsel
related to defendant’s sentencing, the focus of both the pro se
postconviction petition and the amended petition.
In response, postconviction counsel argued, inter alia, that
Edwards does not control the result in this case because Edwards
involved disposition of a defendant’s postconviction petition during
the first stage of postconviction proceedings, i.e., pronouncements
regarding subsequent stages were not necessary to the court’s
disposition.
The circuit court took the matter under advisement and, in an
order entered June 16, 2003, denied defendant’s request for
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postconviction relief. The court’s order notes that one of the issues
presented at the May 21 hearing concerned trial counsel’s alleged
failure to “file a motion to withdraw the Defendant’s guilty plea after
being requested to do so.” Citing this court’s decision in Edwards, the
circuit court observed:
“Defendant has failed to present any basis, assert any grounds
or present any evidence by which a motion to withdraw plea
of guilty would be successful. The Defendant’s claim in this
respect is not supported by the pleadings or the evidence and
will be denied.”
The circuit court also rejected defendant’s other claims of ineffective
assistance, which were based on trial counsel’s conduct at sentencing.
Defendant appealed, abandoning all of the arguments raised in his
postconviction petitions. Instead, defendant argued for the first time
that, after he pled guilty and was sentenced, the trial court failed to
properly admonish him pursuant to Supreme Court Rule 605(b) and
that he is, therefore, entitled to a new hearing for proper Rule 605(b)
admonishments. 356 Ill. App. 3d at 864. Defendant further contended
that his postconviction counsel rendered “ineffective” assistance
insofar as he failed to include the admonishment issue in the amended
petition. 356 Ill. App. 3d at 864.
Acknowledging our recent decision in People v. Jones, 213 Ill. 2d
498 (2004), the appellate court first noted that defendant had forfeited
his admonishment issue. 356 Ill. App. 3d at 864, 868-69. In Jones, a
case involving a pro se defendant and summary dismissal of a
postconviction petition at the first stage of postconviction
proceedings, we reiterated the general rule that claims not raised in a
postconviction petition cannot be argued for the first time on appeal.
Notwithstanding defendant’s forfeiture of the issue, the appellate
court in this case went on to consider and purportedly decide the
admonishment issue, “indirectly,” concluding, in the early portion of
the opinion, that “postconviction counsel was ineffective for failing to
raise the admonishment issue in the [amended] petition.” 356 Ill. App.
3d at 864. In the latter part of the appellate court’s opinion, the court
also appeared to fault postconviction counsel for not raising trial
counsel’s ineffectiveness in “failing to preserve defendant’s right to a
direct appeal.” 356 Ill. App. 3d at 870-71. That separate and distinct
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assessment–rendered on an issue defendant had not even raised on
appeal–appears to be proffered as both an independent indicator of
postconviction counsel’s allegedly deficient representation, and as an
analytical bridge to salvage defendant’s forfeited admonishment issue.
Notwithstanding counsel’s certificate of compliance, which indicates
that counsel fulfilled his obligations under Rule 651(c), the appellate
court opined that counsel’s review of the prior proceedings in the case
was deficient, as the court’s concluding remarks indicate:
“Despite the certification by postconviction counsel, we
conclude that defendant did not receive the reasonable level of
assistance of counsel required by the Act. In defendant’s pro
se petition, he stated that ‘after the plea was entered and
sentences imposed, defendant informed his [trial] counsel that
he wished to withdraw his guilty plea and defendant asked
counsel to file the appropriate papers.’ This assertion alone
should have alerted postconviction counsel that trial counsel
might have been ineffective for failing to preserve defendant’s
right to a direct appeal. As discussed, Rule 605
admonishments are a necessary antecedent to the filing of such
an appeal. [Citation.] We believe that a reasonable review of
the guilty plea proceedings would have disclosed that the trial
court’s admonishments were inadequate under Rule 605(b), a
point conceded by the State on appeal. Such a review of the
guilty plea proceedings is mandated by Rule 651(c) and, in any
event, would be necessary to an investigation of defendant’s
pro se claim of his trial counsel’s ineffectiveness. Under these
circumstances, we conclude that postconviction counsel
rendered unreasonable assistance and that defendant is entitled
to an opportunity to move to withdraw his guilty plea.” 356
Ill. App. 3d at 870-71.
As we will explain hereafter, we find the appellate court’s
reasoning flawed, as it ignores established principles of procedural
default and it fails to follow established law governing the scope of
postconviction counsel’s duties. Thus, we cannot subscribe to the
court’s conclusions or affirm its judgment.
ANALYSIS
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The Post-Conviction Hearing Act (725 ILCS 5/122–1 et seq.
(West 2000)) provides a means by which a defendant may challenge
his conviction or sentence for violations of federal or state
constitutional rights. People v. Whitfield, 217 Ill. 2d 177, 183 (2005).
To be entitled to postconviction relief, a defendant must show that he
has suffered a substantial deprivation of his federal or state
constitutional rights in the proceedings that produced the conviction
or sentence being challenged. Whitfield, 217 Ill. 2d at 183. Rule 605
admonishments are “not constitutionally required as a matter of due
process.” People v. Breedlove, 213 Ill. 2d 509, 519 (2004).
In cases not involving the death penalty, the Act provides for
postconviction proceedings that may consist of as many as three
stages. At the first stage, the circuit court has 90 days to review a
petition and may summarily dismiss it if the court finds it is frivolous
and patently without merit. 725 ILCS 5/122–2.1(a)(2) (West 2000).
If the petition is not dismissed within that 90-day period, the circuit
court must docket it for further consideration. 725 ILCS 5/122–2.1(b)
(West 2000).
At the second stage of postconviction proceedings, counsel may
be appointed for defendant, if defendant is indigent. 725 ILCS
5/122–4 (West 2000). Counsel’s duties, pursuant to Rule 651(c),
include consultation with the defendant to ascertain his contentions of
deprivation of constitutional right, examination of the record of the
proceedings at the trial, and amendment of the petition, if necessary,
to ensure that defendant’s contentions are adequately presented. 134
Ill. 2d R. 651(c). Fulfillment of the third obligation does not require
counsel to advance frivolous or spurious claims on defendant’s behalf.
People v. Greer, 212 Ill. 2d 192, 205 (2004). Moreover, “[p]ost-
conviction counsel is only required to investigate and properly present
the petitioner’s claims.” (Emphasis in original.) People v. Davis, 156
Ill. 2d 149, 164 (1993); see also People v. Vasquez, 356 Ill. App. 3d
420, 425 (2005). We note that a defendant in postconviction
proceedings is entitled to only a “reasonable” level of assistance,
which is less than that afforded by the federal or state constitutions.
People v. Munson, 206 Ill. 2d 104, 137 (2002).
After counsel has made any necessary amendments to the petition,
the State may move to dismiss a petition or an amended petition
pending before the court. 725 ILCS 5/122–5 (West 2000). If that
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motion is denied, or if no motion to dismiss is filed, the State must
answer the petition, and, barring the allowance of further pleadings by
the court, the proceeding then advances to the third stage, a hearing
wherein the defendant may present evidence in support of the petition.
725 ILCS 5/122–6 (West 2000).
Throughout the second and third stages of a postconviction
proceeding, the defendant bears the burden of making a substantial
showing of a constitutional violation. People v. Coleman, 206 Ill. 2d
261, 277 (2002); Edwards, 197 Ill. 2d at 246. At the second stage of
proceedings, all well-pleaded facts that are not positively rebutted by
the trial record are to be taken as true, and, in the event the circuit
court dismisses the petition at that stage, we generally review the
circuit court’s decision using a de novo standard. People v. Childress,
191 Ill. 2d 168, 174 (2000). When a petition is advanced to a third-
stage, evidentiary hearing, where fact-finding and credibility
determinations are involved, we will not reverse a circuit court’s
decision unless it is manifestly erroneous. Childress, 191 Ill. 2d at
174. If no such determinations are necessary at third stage, i.e., no
new evidence is presented and the issues presented are pure questions
of law, we will apply a de novo standard of review, unless the judge
presiding over postconviction proceedings has some “special expertise
or familiarity” with the trial or sentencing of the defendant and that
“familiarity” has some bearing upon disposition of the postconviction
petition. See People v. Caballero, 206 Ill. 2d 65, 87-88 (2002).
Before we proceed further in our analysis, we will first summarize
the circumstances of defendant’s case. The circuit court advanced
defendant’s petition to the second stage of postconviction
proceedings, thus affording defendant the advantages of appointed
counsel. Clearly, postconviction counsel examined defendant’s pro se
petition and the record–in particular the transcript of the sentencing
hearing–in the course of filing an amended petition that expanded
upon the sentencing issues which were the focus of defendant’s pro
se petition, and in arguing those sentencing issues to the circuit court.
The transcript of the sentencing hearing concluded with the Rule 605
admonishments at issue: admonishments that were adequate to apprise
defendant of the steps necessary to preserve and appeal the sentencing
issues which he ultimately raised in postconviction proceedings, but
were inadequate to advise defendant of the procedure for challenging
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his plea of guilty, if that is what defendant intended to do.
The circuit court properly advised defendant that he had to first
file a motion to reconsider the sentence if he wanted to appeal his
sentence. Defendant does not suggest that he ever asked trial counsel
to do that. Although the circuit court did not advise defendant that he
had to file a motion to withdraw his guilty plea if he wanted to
challenge some other aspect of the proceeding, since defendant claims
that he directed trial counsel to file that very motion, it is difficult to
discern how defendant would have been prejudiced by the court’s
incomplete admonishment.
In either case, as the appellate court acknowledged, even a liberal
reading of defendant’s petitions reveals no reference to an
admonishment issue in either the defendant’s pro se petition or the
amended petition. 356 Ill. App. 3d at 869. As noted, there is an
allegation in defendant’s pro se petition that defendant directed trial
counsel to file a motion to withdraw guilty plea, and counsel failed to
do so, but that allegation bears no rational relationship to an
admonishment issue, given the circumstances of this case. The
admonishment issue aside, we emphasize that defendant’s pro se
postconviction petition was only a page and a half in length. It seems
unlikely that postconviction counsel could have overlooked any issue
therein. If, as is the case here, counsel chose not to include a certain
claim from defendant’s pro se petition in an amended petition, one
might well infer that counsel made a decision not to pursue it.
In any event, we need not resolve this case on the merits of
defendant’s arguments because defendant has forfeited the
admonishment issue under general principles of procedural default.
Pursuant to principles set forth in our analyses in Jones and Davis, the
admonishment issue is forfeited because defendant did not raise the
issue in either his pro se petition or an amended petition. See Jones,
213 Ill. 2d at 505 (observing that “this court has generally held that a
claim not raised in a petition cannot be argued for the first time on
appeal”); Davis, 156 Ill. 2d at 158-60 (stating that “[a]ny claim of
substantial denial of constitutional rights not raised in the original or
an amended petition is waived”). Defendant did not claim in either his
pro se petition or his amended petition that the Rule 605
admonishments given him were inadequate. Thus, that issue is
forfeited. As we noted in Jones, “our appellate court has repeatedly
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overlooked the waiver language of [the Act] and has addressed claims
raised for the first time on appeal for various and sundry reasons.”
Jones, 213 Ill. 2d at 506. The appellate court’s disposition in this case
is yet another example of that inappropriate propensity.
With respect to the deficient-assistance prong of the appellate
court’s analysis, we note that defendant cannot successfully maintain
that postconviction counsel rendered deficient assistance in failing to
raise the admonishment issue, because “[p]ost-conviction counsel is
only required to investigate and properly present the petitioner’s
claims.” (Emphasis in original.) Davis, 156 Ill. 2d at 164. In that
regard, Rule 651(c) only requires postconviction counsel to examine
as much of the record “as is necessary to adequately present and
support those constitutional claims raised by the petitioner.” Davis,
156 Ill. 2d at 164. Defendant did not raise an admonishment issue in
his pro se petition. While postconviction counsel may conduct a
broader examination of the record (Davis, 156 Ill. 2d at 164), and may
raise additional issues if he or she so chooses, there is no obligation to
do so.
Finally, we observe that defendant has also forfeited any
contention that trial counsel was ineffective for failing to file a motion
to withdraw guilty plea–and that postconviction counsel was deficient
for failing to argue that point–as defendant apparently did not preserve
that claim by raising it in the appellate court. See Unzicker v. Kraft
Food Ingredients Corp., 203 Ill. 2d 64, 73 (2002) (“issues that the
appellant fails to raise in the appellate court are waived for purposes
of our review”).
Defendant is, of course, free to pursue any defaulted claims he
believes to be of merit by filing a successive postconviction petition in
the circuit court in accordance with the “cause and prejudice”
guidelines set forth in People v. Pitsonbarger, 205 Ill. 2d 444 (2002).
See also 725 ILCS 5/122–1(f) (West 2004) (codifying the cause-and-
prejudice test effective January 1, 2004). Pursuant to those guidelines,
defendant will have to demonstrate “cause” for failing to raise the
error in prior proceedings and actual “prejudice” resulting from the
claimed error. See People v. Jones, 211 Ill. 2d 140, 148-50 (2004).
For the foregoing reasons, the judgment of the appellate court is
reversed, and that of the circuit court is affirmed.
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Appellate court judgment reversed;
circuit court judgment affirmed.
JUSTICE BURKE took no part in the consideration or decision
of this case.
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