People v. Lemons , 242 Ill. App. 3d 941 ( 1993 )

PRESIDING JUSTICE STEIGMANN

delivered the opinion of the

court:

On March 17, 1992, defendant filed a pro se petition for post-conviction relief, alleging that she was denied effective assistance of counsel at trial. On March 30, 1992, the trial court dismissed defendant’s petition as “frivolous and patently without merit,” pursuant to section 122 — 2.1(aX2) of the Post-Conviction Hearing Act (Act) (111. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(aX2)). Defendant appeals, arguing that the court erred by dismissing her petition.

We affirm.

I. Background

In June 1989, the State charged defendant with four counts of first degree murder (111. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(1)). In January 1990, defendant entered a negotiated guilty plea to second degree murder (111. Rev. Stat. 1989, ch. 38, par. 9 — 2(a)(2)). In March 1990, the trial court sentenced her to 15 years in prison. No direct appeal was taken.

On March 17, 1992, defendant filed a pro se petition for post-conviction relief, which alleged that she was denied effective assistance of counsel for the following reasons: (1) defense counsel “coerced defendant into accepting a fifteen year sentence where the possibility existed that she could of [sic] received a lesser sentence if taken to trial”; and (2) defense counsel “acknowledged the fact that defendant was indigent, but failed to give the defendant-petitioner any copies of the ‘report of proceeding or common law records[’] to perfect an appeal to the Illinois Appellate Court or Supreme Court.”

In its March 30, 1992, order of dismissal, the trial court wrote that defendant’s petition “sets out no facts supporting a claim of coercion.” The court also noted that it had fully admonished defendant under Supreme Court Rule 402 (134 111. 2d R. 402) when she pleaded guilty, and that defendant’s “guilty plea was found to be entirely voluntary.” Regarding defendant’s second claim, the court noted that defendant “was fully advised following her sentencing hearing *** about how to perfect her appeal rights and nothing is shown that she ever requested any assistance of her trial counsel regarding any appeal.”

II. Analysis

A. Proceedings Under the Post-Conviction Hearing Act In People v. Eddmonds (1991), 143 111. 2d 501, 510, 578 N.E.2d 952, 955-56, the Illinois Supreme Court discussed the Act as follows:

“The *** Act provides a remedy to criminal defendants who claim that substantial violations of their constitutional rights occurred in their trial. [Citation.] A post-conviction proceeding is not an appeal per se, but a collateral attack upon a final judgment. [Citation.] The purpose of a post-conviction proceeding is not to determine guilt or innocence, but to inquire into constitutional issues which have not been, and could not have been, previously adjudicated. [Citation.] In a post-conviction proceeding, the petitioner bears the burden of proving that a substantial constitutional violation occurred at trial.”

In 1983, the General Assembly enacted Public Act 83 — 942 (Pub. Act 83 — 942, eff. November 23, 1983 (1983 111. Laws 6200, 6201)), which amended the Act by adding section 122 — 2.1 (111. Rev. Stat. 1989, ch. 38, par. 122 — 2.1). That new section authorized a trial court to dismiss a post-conviction petition that the court determined was frivolous or patently without merit, thereby avoiding the expense, bother, and delay that the processing of deficient petitions had caused the courts before the enactment of Public Act 83 — 942. By enacting section 122 — 2.1, the legislature clearly intended to expedite trial court handling of deficient post-conviction petitions.

In People v. Dredge (1986), 148 Ill. App. 3d 911, 912-13, 500 N.E.2d 445, 446, this court considered the 1983 amendment to the Act and determined that the Act now provided a three-stage process for adjudication of petitions for post-conviction relief. At the first stage, the trial court should not decide the petition on the merits; instead, without input from the State or further pleadings from the defendant, the court should simply determine if the petition is frivolous or patently without merit. (Dredge, 148 Ill. App. 3d at 912, 500 N.E.2d at 446.) “[I]n order to withstand dismissal at the first stage of post-conviction proceedings, a petition for post-conviction relief need only contain a simple statement which presents the gist of a claim for relief which is meritorious when considered in view of the record of the trial court proceedings.” Dredge, 148 Ill. App. 3d at 913, 500 N.E.2d at 446.

If the court determines at this first stage that the petition is not frivolous or patently without merit, then at the second stage the court may appoint counsel to represent an indigent defendant, and counsel will have the opportunity to amend the post-conviction petition. The State may then move to dismiss the petition. The third and final stage is an evidentiary hearing if the court has not dismissed the petition on the State’s motion. Dredge, 148 111. App. 3d at 913, 500 N.E.2d at 446.

In People v. Porter (1988), 122 111. 2d 64, 74, 521 N.E.2d 1158, 1161, the supreme court discussed section 122 — 2.1 of the Act and added the following regarding the petitioner’s burden:

“[T]he [post-conviction] petitioner must set forth the specific manner in which his rights were violated. (111. Rev. Stat. 1983, ch. 38, par. 122 — 2.1.) The petitioner does not have to construct legal arguments or cite to legal authority. Once the petitioner sets out allegations demonstrating a meritorious constitutional claim, he is entitled to have counsel represent him on the petition. ‘While it is obvious that counsel should be better able to more artfully draft a petition than an indigent petitioner unschooled in legal drafting, it is certainly not clear that an indigent petitioner could not present the gist of his claim so that the trial court could make an initial determination as to whether * * * the claim is frivolous.’ People v. Baugh (1985), 132 HI. App. 3d 713, 717[, 477 N.E.2d 724, 726].”

B. Defendant’s Claim, That Her Counsel Coerced Her Guilty Plea

Citing Dredge, defendant argues that her pro se petition contained the gist of a meritorious claim and that “evidence of coercion could only be properly considered with the appointment of counsel and investigation of the nature of the advice and tactics employed by trial counsel when advising the defendant to plead guilty.” Defendant also cites People v. Von Perbandt (1991), 221 Ill. App. 3d 951, 956, 583 N.E.2d 90, 93, for the proposition that only a “minimal amount of specificity is required” for pro se petitions. Defendant claims that her petition complied with the standards of Dredge and Von Perbandt. We disagree.

The Act requires that the allegations in the petition for post-conviction relief be supported by affidavit, the record, or other evidence. (111. Rev. Stat. 1991, ch. 38, pars. 122 — 1, 122 — 2.) However, the sole extent of defendant’s allegations regarding her coercion claim is that her trial counsel “coerced defendant into accepting a fifteen year sentence where the possibility existed that she could of [sic] received a lesser sentence if taken to trial.” In People v. Williams (1972), 52 Ill. 2d 466, 468, 288 N.E.2d 353, 354, the supreme court rejected a similar argument by a pro se petitioner and noted that the Act requires that a petition be supported by affidavits, records, or other evidence supporting its allegations. Significantly, the Williams court -wrote that “[n]o allegation as to the time, place, what was said or other circumstances of the claimed coercion was made by affidavit or otherwise.” Williams, 52 Ill. 2d at 469, 288 N.E.2d at 354-55.

The present case is no different than Williams. This record does not contain any statement by defendant of how, when, or where her trial counsel coerced her into pleading guilty. If she was truly coerced, we fail to understand why she cannot supply this information. It is just not that tricky or difficult for her to provide the particulars underlying the allegation of coercion in her petition. We will not permit defendant to keep that information secret, only to reveal it (assuming it exists) in later, amended petitions or at the hearings thereon.

The supreme court’s discussion in Porter that we earlier quoted regarding the petitioner’s burden makes clear that the supreme court’s requirements for what a valid post-conviction petition must contain, as stated in Williams, remain valid even after Dredge. Similarly, in People v. Lawrence (1991), 211 Ill. App. 3d 135, 138, 569 N.E.2d 1175, 1177, this court acknowledged as much when it affirmed a trial court’s dismissal of a post-conviction petition as frivolous and patently without merit and wrote the following:

“[T]he allegations of a post-conviction petition must be supported by the record in the case or by accompanying affidavits. [Citations.] The defendant’s petition was not supported by the record in the case or by an accompanying affidavit. For this reason alone, the trial court properly dismissed the defendant’s post-conviction petition.”

We note that the supreme court in People v. Johnson (1993), 154 Ill. 2d 227, 240, recently cited Lawrence approvingly for the proposition that the trial court properly dismissed the defendant’s post-conviction petition due to defendant’s failure to support his claims with affidavits.

Based on this appeal and several others which have come before us, it is evident that we must further explain the term “gist of a claim for relief which is meritorious,” as used in Dredge (148 Ill. App. 3d at 913, 500 N.E.2d at 446). A “gist of a meritorious claim” is not a bare allegation of a deprivation of a constitutional right. Although a pro se defendant seeking post-conviction relief would not be expected to construct legal arguments, cite legal authority, or draft her petition as artfully as would counsel, the pro se defendant must still plead sufficient facts from which the trial court could find a valid claim of deprivation of a constitutional right. (Porter, 122 Ill. 2d at 74, 521 N.E.2d at 1161.) To hold otherwise would create a disincentive to specificity, benefiting those who set forth their allegations solely in the broadest, most conclusionary terms with greater process — in the sense of keeping them “in the game” — over those who state all the facts and simply have an insufficient case, namely, they raise no issues of constitutional proportion.

The trial court is not prevented from closely scrutinizing the supporting documents at the first stage in the process to determine whether the allegations are frivolous or patently without merit. Indeed, we believe the enactment of section 122 — 2.1 of the Act encourages such an analysis. (111. Rev. Stat. 1991, ch. 38, par. 122 — 2.1.) Also, section 122 — 2 of the Act — which sets forth the requirements of what a post-conviction petition must contain — has been part of the Act in substantially the same language for decades. We fail to find any legislative intent to reduce the preexisting statutory requirements of section 122 — 2 of the Act when the legislature enacted Public Act 83 — 942, which added section 122 — 2.1 to the Act. In other words, by adding section 122 — 2.1 to the Act in 1983, the last thing the legislature intended was to increase the threshold at which the trial court could dismiss bogus post-conviction petitions.

Therefore, the language from Dredge — a post-conviction petition suffices if it sets forth the gist of a meritorious constitutional claim-means that the pro se petitioner need not construct legal arguments in her petition nor even understand what legal arguments the facts she presents therein might support. Instead, the trial court should consider the petition at the first stage to determine whether it contains sufficient facts upon which a meritorious constitutional claim could be based. In the present case, for instance, if defendant’s claims had any merit, she could have set forth in her verified petition just what bad things she claims her trial counsel did that now lead her to claim she was coerced into pleading guilty. After all, at some point she will have to provide these particulars because she has the burden of proof to demonstrate she suffered a deprivation of her constitutional rights.

Additionally, we find that the statement from Von Perbandt that “a minimal amount of specificity(.is required of a petitioner” at the first stage (Von Perbandt, 221 Ill. App. 3d at 956, 583 N.E.2d at 93) lends no support to defendant’s arguments because here we confront zero specificity. Defendant’s claim that her trial counsel coerced her into pleading guilty is entirely conclusory and utterly devoid of even a hint of what facts might underlie that claim. If we were to accept defendant’s claim that her petition is sufficient, then in effect we would be holding that any allegation of attorney misconduct in a post-conviction petition suffices at the first stage of the trial court’s scrutiny despite the petition’s total absence of factual allegations.

Essentially, the question before us is whether we should impose upon a trial court the expense, bother, and delay of proceeding beyond the first stage of post-conviction petition scrutiny when the particular petition before the court fails to contain factual averments. We hold that we will not impose any such requirement, and that to do so would be to squander our scarce judicial resources and the tax dollars which support our system of justice.

The trial court’s written order dismissing defendant’s post-conviction petition as frivolous and patently without merit found that defendant failed to set forth facts in that petition to support a claim of coercion. The trial court’s determination is correct, and to hold otherwise by finding the petition before us sufficient would unleash a cascade of frivolous petitions upon the trial courts, precisely what the General Assembly hoped to stem when it added section 122 — 2.1 to the Act in 1983.

C. Defendant’s Claim That Counsel Failed To Give Her a Copy of the Common Law Record

Defendant’s second allegation in her post-conviction petition — that her trial counsel failed to give her copies of the report of proceedings or common law record to perfect an appeal — has even less merit than her claim that her lawyer coerced her into pleading guilty. This is so because her first claim would suffice (if properly supported) to at least afford a basis for relief under the Act. Defendant’s second allegation fails to do even that.

First, no reason exists why any defendant should be provided with copies of transcripts before filing an appeal. Supreme Court Rule 323 (134 111. 2d R. 323) clearly contemplates that transcripts will normally be prepared only after a defendant files a notice of appeal.

Second, defense counsel’s “failure” to provide his client with copies of the common law record cannot have meaningfully — much less constitutionally — impeded defendant’s ability to file a notice of appeal or to make known her interest in having a notice of appeal filed on her behalf. Defendant’s claim that without the common law record and transcripts she cannot meaningfully determine whether meritorious issues for appeal exist is ridiculous. As the trial court correctly noted in its order dismissing the post-conviction petition as frivolous and patently without merit, “[defendant] was fully advised following her sentencing hearing *** about how to perfect her appeal rights and nothing is shown that she ever requested any assistance of her trial counsel regarding any appeal.”

If defendant wanted to pursue an appeal, all she had to do was communicate that desire to her counsel or the court. However, she failed to do so, and now attempts to blame her inaction on her trial counsel’s “failure” to provide her with copies of transcripts and the common law record. Her claims are groundless.

Finally, we emphasize that Hlinois law does not require defense counsel to furnish copies of any of the documents that defendant claims her attorney failed to furnish her. Supreme Court Rule 607(b) (134 Ill. 2d R. 607(b)) provides that a convicted defendant may petition the court for a report of the proceedings at her trial or hearing. That rule further requires the petition to be verified and to state facts showing that the petitioner was without financial means with which to obtain the report of proceedings. The record before us here shows no compliance whatsoever with Rule 607(b). To accept defendant’s argument would simply read that rule out of existence by finding that somehow defense counsel at trial, not the trial court, has the obligation to furnish the documents in question. Counsel’s “failure” to give copies of the record to defendant so that she could perfect her appeal cannot possibly constitute a constitutional violation cognizable in a post-conviction petition.

III. Conclusion

For the reasons stated, we affirm the trial court’s order dismissing defendant’s post-conviction petition as frivolous and patently without merit.

Affirmed.

KNECHT, J., concurs.