People v. Jackson ( 2006 )

NO. 4-04-0007
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
NATHANIEL JACKSON, ) No. 02CF627
Defendant-Appellant. )
) Honorable
) Jeffrey B. Ford,
) Judge Presiding.
JUSTICE APPLETON delivered the opinion of the court:
Defendant, Nathaniel Jackson, appeals from the summary dismissal of his
pro se petition for postconviction relief. He makes two arguments: (1) we should
dismiss the office of the State Appellate Defender (OSAD) and allow defendant to
represent himself in this appeal, and (2) the trial court erred in summarily dismissing his
petition, which stated the gist of a claim of ineffective assistance of trial counsel. We
deny defendant's request to represent himself, and we affirm the trial court's judgment.
I. BACKGROUND
The State charged defendant with burglary (720 ILCS 5/19-1 (West
2002)). Because of his criminal history, the offense was a Class X felony. See 730
ILCS 5/5-5-3(c)(8) (West 2002).
At trial, a police officer, Jeff Creel, testified he went to Arrowhead Lanes at
approximately 4:30 a.m. on March 25, 2002, in response to a burglar alarm. He noticed
a broken window. David Bolt, one of the owners of the bowling alley, testified he came
to the scene and noticed that someone had pried open the cash registers and emptied
them of $200 to $250 in cash. He also noticed the intruder had broken into some video
games, destroyed two video cameras near the snack bar, and removed a ceiling tile in
the women's bathroom. The police found defendant hiding in the drop ceiling. When
defendant came down, they peered into the ceiling and found a maroon backpack,
which contained a pair of jeans, a knife, an ice pick, and $224 in cash. A videotape
showed someone breaking the window and climbing into the building, and the gloves
and backpack the intruder was wearing matched those that the police found on or near
defendant's person.
The jury found defendant guilty of burglary, and the trial court sentenced
him to 28 years' imprisonment. On direct appeal, we affirmed the conviction and
sentence. People v. Jackson, No. 4-02-0732 (March 30, 2004) (unpublished order
under Illinois Supreme Court Rule 23).
Defendant afterward filed a postconviction petition, which the trial court
dismissed as frivolous and patently without merit. He appealed from the summary
dismissal, and this is the appeal presently before us. Three times in the course of this
appeal, defendant filed a pro se motion that we dismiss OSAD and allow defendant to
represent himself. We denied those motions. OSAD has now filed a brief and a reply
brief in defendant's behalf, in which it urges us to reconsider these rulings and grant
defendant's motion to proceed pro se.
II. ANALYSIS
A. Defendant's Request To Represent Himself
Defendant argues (through his appointed counsel) that under Illinois
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Supreme Court Rules 651(c) and 607 (134 Ill. 2d R. 651(c); Official Reports Advance
Sheet No. 22 (October 30, 2002), R. 607, eff. September 30, 2002) as well as section
121-13(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/121-13(a)
(West 2004)), he has the right to represent himself in this appeal. He cites cases which,
according to him, stand for the proposition that "the right to appointed counsel in a
post[]conviction proceeding pursuant to Rule 651(c) may be waived." People v. French,
210 Ill. App. 3d 681, 569 N.E.2d 934 (1991); People v. Williams, 185 Ill. App. 3d 840,
541 N.E.2d 1175 (1989). He notes that the Supreme Court of Illinois has granted
motions by indigent defendants to represent themselves in appeals from postconviction
proceedings (People v. Harrison, 46 Ill. 2d 159, 161, 263 N.E.2d 87, 88 (1970); People
v. Korycki, 45 Ill. 2d 87, 89, 256 N.E.2d 798, 799 (1970); People v. Southwood, 49 Ill. 2d
228, 229, 274 N.E.2d 41, 42 (1971)) and that the United States Supreme Court has
condemned the practice of forcing lawyers upon criminal defendants (Faretta v.
California, 422 U.S. 806, 834, 45 L. Ed. 2d 562, 581, 95 S. Ct. 2525, 2540-41 (1975)).
Conceding that "Rule 651(c) can be read as implicitly affording a
defendant the right to refuse appointment of counsel[,] as in Rule 607(a)," the State
nevertheless argues that our refusal to allow defendant to proceed pro se is correct
because the record does not show that his waiver of appellate counsel is "voluntary and
intelligent." The State distinguishes Faretta because that case concerned a criminal
trial, whereas the present case concerns an appeal from a postconviction proceeding.
In his reply brief, defendant observes that if he had requested to waive
appointed counsel at trial, Rule 401(a) (134 Ill. 2d R. 401(a)) would have required the
trial court to give him certain admonitions to ensure that the waiver was voluntary and
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intelligent. He is aware of no authority, however, for requiring such admonitions if he
requests to waive counsel on appeal from postconviction proceedings. He argues it
would be "incongruous to now require [him] to proceed on appeal with appointed
counsel, when he had no constitutional or statutory right to appointed counsel, even if
he had requested it, at the filing stage." (Emphases in original.)
Although criminal defendants have a sixth-amendment right to represent
themselves at trial (Faretta, 422 U.S. at 819, 45 L. Ed. 2d at 572, 95 S. Ct. at 2533),
they have no federal constitutional right to self-representation on appeal (Martinez v.
Court of Appeal of California, 528 U.S. 152, 154, 145 L. Ed. 2d 597, 602, 120 S. Ct.
684, 687 (2000)). In his brief, defendant makes a reasonable (though belated)
argument that under Rules 651(d) and 607, he has the option of representing himself on
appeal from the dismissal of his postconviction petition. Rule 651(d) provides: "The
procedure for an appeal in a post[]conviction proceeding shall be in accordance with the
rules governing criminal appeals, as near as may be." 134 Ill. 2d R. 651(d). Rule 607,
which is a rule governing criminal appeals, states that if the trial court "determines that
the defendant is indigent and [that the defendant] desires counsel on appeal, the court
shall appoint counsel on appeal." (Emphasis added.) Official Reports Advance Sheet
No. 22 (October 30, 2002), R. 607(a), eff. September 30, 2002. Thus, the appointment
of counsel--and, arguably, the counsel's continuing tenure--is conditional on the
defendant's desire for such counsel. Also, if one interpreted Rule 651 to forbid self-
representation by indigent defendants, this interpretation might put Rule 651 at odds
with section 121-13(a) of the Code, which conditions the appointment of OSAD on the
indigent defendant's "desire[] [for] counsel on appeal" (725 ILCS 5/121-13(a) (West
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2004)).
These are all, as we said, reasonable arguments, but the time for making
these arguments was earlier, in the motions to proceed pro se. Illinois Supreme Court
Rule 361(a) requires that such motions state not only "the relief sought" but also "the
grounds therefor." 177 Ill. 2d R. 361(a). In his motions, the only authorities defendant
cited that came close to being relevant were Faretta and Martinez, which we have
already discussed, and People v. Bowman, 40 Ill. 2d 116, 123, 239 N.E.2d 433, 438
(1968), in which the supreme court stated: "It has been found to be reversible error to
refuse a criminal defendant's timely request for self-representation." The supreme court
made that statement, however, in the context of self-representation in a guilty-plea
hearing (Bowman, 40 Ill. 2d at 118, 239 N.E.2d at 435), not self-representation in an
appeal from a postconviction proceeding. In his motions, defendant never cited, for
instance, Rule 651(d), Rule 607, or section 121-31(a) of the Code and never made the
arguments grounded on those authorities that he is making now, in his brief. A
reviewing court "is not simply a repository in which appellants may dump the burden of
argument and research." People v. Chatman, 357 Ill. App. 3d 695, 703, 830 N.E.2d 21,
29 (2005). Without such argument and research, "we [were] unable to say whether the
motion[s] should [have been] allowed or not, and [they] *** therefore [had to be]
overruled." People ex rel. Akin v. Kipley, 167 Ill. 638, 638, 48 N.E. 688, 688 (1897).
The burden of persuasion was on the movant. In his brief, defendant admits that "what
constitutes a valid waiver of postconviction appellate counsel *** is a question of first
impression." He could not reasonably expect us to answer that question without the
benefit of a coherent argument and citation of relevant authorities.
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At this time, the argument for self-representation comes too late. The
attorneys have filed their briefs. To grant defendant's request to proceed pro se at this
late date, we would have to issue a new briefing schedule, and defendant and the State
would have to draft and file new briefs. Even when defendants have a constitutional
right to represent themselves, they must assert that right in a timely (and, we might add,
effective) manner. Bowman, 40 Ill. 2d at 124, 239 N.E.2d at 438; Martinez, 528 U.S. at
162, 145 L. Ed. 2d at 607, 120 S. Ct. at 691. At this point in the appellate process,
judicial efficiency outweighs defendant's interest in individual autonomy (see Martinez,
528 U.S. at 163, 145 L. Ed. 2d at 608, 120 S. Ct. at 692), and we deny his request to
proceed pro se in this appeal.
B. Alleged Ineffectiveness of Counsel
To avoid summary dismissal, a postconviction petition must meet two
requirements. First, it must state the gist of a constitutional claim. People v. Jones, 213
Ill. 2d 498, 504, 821 N.E.2d 1093, 1096 (2004). Second, the postconviction proceeding
must be the earliest possible opportunity for asserting that claim. A trial court should
summarily dismiss a petition "where facts ascertainable from the record reveal the
petition's claims have already been decided, waived, or forfeited." People v. Blair, 215
Ill. 2d 427, 430, 831 N.E.2d 604, 607 (2005). "[I]ssues that were raised and decided on
direct appeal are barred from consideration by the doctrine of res judicata; issues that
could have been raised, but were not, are considered waived." People v. Williams, 209
Ill. 2d 227, 233, 807 N.E.2d 448, 452 (2004).
Defendant argues that his postconviction petition states the gist of a claim
of ineffective assistance of counsel. Allegedly, his counsel rendered ineffective
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assistance in five ways. First, counsel failed to consult him before waiving the
preliminary hearing. Second, counsel failed to ask him whether he wanted a bench trial
instead of a trial by jury. Third, instead of asking defendant what his real reason was for
being in the bowling alley at 4:30 a.m., counsel presented a defense that was untrue,
namely, that defendant entered the bowling alley to seek shelter from the cold.
Defendant alleged in his petition that he actually was "high on cocaine and alcohol for
three nights [straight,] without any sleep," and "did not realize what [he] was real[l]y
doing." The window of the bowling alley "was already broken," and his "cocaine
addiction *** [led him] to enter into that broken window[,] and[] [he] did not have control[]
over [his] actions from that point." Fourth, counsel never consulted with defendant
before sentencing to ascertain whether there were any mitigating factors. Fifth, counsel
failed to tender an instruction on the included offense of criminal damage to property.
We considered and rejected the first two contentions on direct appeal.
People v. Jackson, No. 4-02-0732, slip order at 11 (March 30, 2004) (unpublished order
under Illinois Supreme Court Rule 23). Therefore res judicata bars those contentions.
See Williams, 209 Ill. 2d at 233, 807 N.E.2d at 452.
As for the third contention, defendant's alleged intoxication would have
made no difference in the verdict. Ineffective assistance of counsel has two elements:
(1) defense counsel's performance fell below an objective standard of reasonableness,
and (2) there is a reasonable probability that the outcome of the case would have been
different but for defense counsel's substandard performance. People v. Young, 341 Ill.
App. 3d 379, 383, 792 N.E.2d 468, 472 (2003). Effective January 1, 2002, Illinois no
longer recognized voluntary intoxication as an excuse for criminal conduct. 720 ILCS
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5/6-3 (West 2004). "A person who is in an intoxicated or drugged condition is criminally
responsible for conduct unless such condition is involuntarily produced and deprives
him of substantial capacity either to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law." 720 ILCS 5/6-3 (West 2004). It was
not incompetence to refrain from asserting a defense that the law clearly negated.
As for the fourth contention, defendant does not state what the mitigating
factors would have been. Without that information, we have no basis for concluding that
(1) any mitigating factors existed and (2) they would have made a difference in the
sentence. See People v. Rodriguez, 313 Ill. App. 3d 877, 887, 730 N.E.2d 1188, 1196
(2000) ("a court may proceed directly to the second prong of the Strickland test and
need not examine effectiveness in the absence of prejudice").
As for the fifth contention, we find no reasonable probability that an
instruction on the included offense of criminal damage to property would have made any
difference in the outcome of this case. No rational jury would have found that defendant
intended only to damage property. The evidence was overwhelming that he intended to
steal the money in the cash registers and game machines.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court's judgment.
Affirmed.
TURNER, P.J., and MYERSCOUGH, J., concur.
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