People v. Thomas , 2014 IL App (2d) 121001 ( 2014 )

Illinois Official Reports
Appellate Court
People v. Thomas, 2014 IL App (2d) 121001
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MARQUIS THOMAS, Defendant-Appellant.
District & No. Second District
Docket No. 2-12-1001
Filed September 26, 2014
Rehearing denied October 31, 2014
Held The summary dismissal of defendant’s pro se postconviction petition
(Note: This syllabus alleging that his appellate counsel was ineffective in failing to allege
constitutes no part of the on direct appeal from his conviction for first-degree murder that his
opinion of the court but trial counsel was ineffective in dealing with evidence that an
has been prepared by the incarcerated minor confessed to a jail chaplain and detectives was
Reporter of Decisions reversed and the cause was remanded for further proceedings,
for the convenience of notwithstanding the trial court’s finding that the petition was frivolous
the reader.) and patently without merit, since defendant did not forfeit his
arguments and the petition stated the gist of a constitutional claim,
especially in view of the potentially meritorious claim for a new trial
based on the exclusion of a jail chaplain’s testimony concerning the
minor’s confession and the chaplain’s indication that despite the
clergy-penitent privilege, there was nothing in the rules of his church
that prevented him from disclosing the minor’s statement.
Decision Under Appeal from the Circuit Court of Winnebago County, No.
Review 07-CF-1702; the Hon. John R. Truitt, Judge, presiding.
Judgment Reversed and remanded; mittimus modified.
Counsel on Alan D. Goldberg and Rachel Moran, both of State Appellate
Appeal Defender’s Office, of Chicago, for appellant.
Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M.
Bauer and Richard S. London, both of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel PRESIDING JUSTICE BURKE delivered the judgment of the court,
with opinion.
Justices Schostok and Birkett concurred in the judgment and opinion.
OPINION
¶1 A jury found defendant, Marquis D. Thomas, guilty of the first-degree murder of
Lavontaye Nunn. See 720 ILCS 5/9-1(a)(1) (West 2006). The trial court sentenced defendant
to 30 years’ imprisonment with a 25-year handgun “add-on” penalty, resulting in a 55-year
aggregate term. On direct appeal, defendant argued, inter alia, that the trial court erred by
excluding the statement “I did it” uttered to detectives by N.H., an incarcerated minor. N.H.
had recanted the statement in a video-recorded interview. We affirmed the judgment, holding
that the trial court did not abuse its discretion by excluding the statement as unreliable, in
part because it was not corroborated by other evidence. People v. Thomas, 2011 IL App (2d)
091061-U, ¶ 56.
¶2 Defendant filed a pro se postconviction petition in which he alleged that appellate
counsel was ineffective for failing to argue trial counsel’s ineffectiveness. The petition
reiterated that N.H. confessed to the detectives, asserted that N.H. also confessed to a jail
chaplain, and argued that trial counsel should have taken additional steps to ensure that the
confession was admitted.
¶3 The postconviction court summarily dismissed the petition as frivolous and patently
without merit. The court concluded that appellate counsel was not ineffective for failing to
allege trial counsel’s ineffectiveness in handling the evidence, because trial counsel, in fact,
had raised, argued, and preserved for direct appeal the admissibility of N.H.’s statement to
the detectives. On appeal, defendant frames the underlying issue differently, arguing that
appellate counsel was ineffective for failing to argue that the trial court erred in excluding
N.H.’s conversations with the chaplain and for failing to argue that the chaplain’s testimony
would have corroborated N.H.’s statement to the detectives.
¶4 The State responds that defendant has forfeited his present arguments because the
postconviction petition focuses on N.H.’s statement to the detectives, not to the chaplain, and
attributes the error to trial counsel, not the trial court. The State echoes the postconviction
-2-
court’s conclusion that, because trial counsel raised, argued, and preserved the issue, he was
not ineffective. The State alternatively contends that, if we choose to address defendant’s
present arguments regarding N.H.’s statements to the chaplain and the detectives, the petition
does not state the gist of a constitutional claim, because the chaplain’s disclosure was
correctly barred under the clergy-penitent privilege.
¶5 The forfeiture issue is a close one, but the standard of review for a first-stage dismissal is
de novo, and we have a duty to construe pro se postconviction petitions liberally and to allow
borderline petitions to proceed. Defendant’s petition and appellate brief both argue that
counsel on direct appeal mishandled the admissibility of N.H.’s alleged confessions to the
detectives and the chaplain, and the record and the law potentially support that assertion.
Therefore, we conclude that defendant has not forfeited his present appellate arguments and
that the petition states the gist of a constitutional claim. We reverse the summary dismissal of
the petition and remand the cause for further postconviction proceedings. We also modify the
mittimus to reflect an additional credit for defendant’s time spent in presentence custody.
¶6 I. BACKGROUND
¶7 A. Evidence at Trial
¶8 The shooting occurred on the central walkway of a courtyard on the 1500 block of Birch
Court in Rockford. The block has two long rectangular apartment buildings that run north
and south and are separated by a grassy central courtyard. The central walkway runs north
and south through the middle of the courtyard. To the west of the west building is Garden
Court and to the east of the east building is Birch Court. The area is bordered on the north by
Buckbee Street and on the south by 15th Avenue.
¶9 On the evening of April 3, 2007, Lavontaye and Eva Pennie were talking on the central
walkway near 1504 Birch Court when a man walked up to them and began shooting. A bullet
grazed Eva’s face, and Lavontaye was hit several times. Lavontaye crawled south a short
distance to where his body was found on the sidewalk between 1511 Birch Court, which is in
the west building, and 1510 Birch Court, which is in the east building.
¶ 10 On the night of the shooting, Minishia Harris lived at 1510 Birch Court. At 9:15 p.m., she
heard shooting and looked out her front window. Minishia was 10 to 15 feet from the scene
and saw “a boy crawling, and [she saw] someone standing over him shooting.” The shooter
was wearing a black hoodie sweatshirt, and the hood fell down so Minishia could see his
face. Minishia identified defendant in court as the offender. Minishia saw defendant run west
toward Garden Court and enter a car that drove north on Garden Court toward Buckbee
Street. Minishia heard the noise from a car that she identified as belonging to “Fo’ Pumpkin.”
Minishia called 911. Minishia previously had seen defendant hanging around with Fo’
Pumpkin.
¶ 11 Minishia testified that she saw the police chasing defendant and Tommie Moore through
the projects on April 29, 2007, and that she saw the police arrest them. Later that day,
Minishia called the police and told them that they had arrested the person who had shot
Lavontaye.
¶ 12 Rockford police officer Michelle Bootz testified that she was on patrol at the Blackhawk
Projects on the evening of April 29, 2007, when she arrested N.H. and Tommie Moore.
-3-
Officer Bootz testified that another officer arrested defendant and brought him to where N.H.
and Moore were in custody and awaiting transport to the police station.
¶ 13 Nikita Bernel-Hill testified that, on the night of the shooting, she lived at 1407 Birch
Court, which was north of the crime scene. Nikita heard gunshots, went to her children’s
room, looked out the window, and saw defendant run past. Defendant was about 10 to 15 feet
away when Nikita saw him. Defendant was wearing a black hoodie and had a gun in his
waistband. Defendant bent down to pick a telephone off the ground. Nikita saw defendant
run east toward Birch Court and get into Fo’ Pumpkin’s car, which drove south on Birch
Court toward 15th Avenue. Nikita testified that, though she was not sure, it looked like
Tommie Moore, who was also known as “Trapper,” was driving the car. Nikita called the
police and told them that she heard shots, but she also told them not to come to her house,
because she feared the people in the Blackhawk Projects.
¶ 14 Eva testified that she lived at the Blackhawk Projects on the date of the shooting. Eva
was standing on the sidewalk with Lavontaye, whom she knew as “Face.” Someone ran up
and shot Lavontaye repeatedly, and Eva ran west toward Sun Court Street and looked back.
Eva did not identify defendant in court as the shooter. Eva did not speak with the police on
the night of the shooting, because she was scared, but she spoke with them the next day. Eva
admitted that she had omitted certain information from her statement that day, because she
was scared.
¶ 15 Detective Eric Harris testified that he spoke with Eva on May 16, 2007, regarding the
shooting. Detective Harris created a photographic lineup and showed it to Eva, who
identified defendant as the person who shot and killed Lavontaye. Eva also gave Detective
Harris a written statement in which she identified defendant as the person who shot the
victim and whom she identified in the photographic lineup.
¶ 16 Eva testified that she remembered giving the police another statement on May 16, 2007,
and she said that the statement was truthful. Eva admitted that she told the police that she saw
who shot Lavontaye, but she testified that she was not sure who shot Lavontaye and that she
could not remember who she said had shot him. Eva also testified that she remembered being
shown photographs and identifying someone, but she did not remember that the person she
identified was defendant.
¶ 17 Eva acknowledged that, in August 2008, she had talked with an assistant State’s Attorney
and a detective, telling them that she was afraid for her life and had been beaten and told to
keep her mouth shut about the murder. Eva identified the written statement that she had given
the police and testified that the statement was truthful. Despite that, she again testified that
she did not see in court the person who shot Lavontaye.
¶ 18 Defendant presented an alibi defense through the testimony of Kimberly Keys as well as
the security videotape from the emergency room of SwedishAmerican Hospital. Defendant’s
theory at trial was that he could not have committed the murder, because he was at the
hospital attempting to visit a friend around the time of the shooting. He also argued that the
videotape showed that he was wearing different clothing than the offender. The parties
stipulated to the authenticity of the videotape, and the trial court admitted it into evidence and
played it for the jury. Kimberly testified that the videotape showed her, defendant, and
another couple in the emergency room lobby.
-4-
¶ 19 B. N.H.’s Statement to Detectives
¶ 20 Before trial, defendant moved to admit the statement of N.H., who blurted “I did it” while
talking with Detective Harris at the police station about one month after the shooting. The
trial court excluded the statement, and counsel on direct appeal argued that the exclusion was
an abuse of discretion entitling defendant to a new trial.
¶ 21 On April 29, 2007, defendant, Tommie Moore, and N.H. were arrested at the Blackhawk
Projects. N.H. was arrested for criminal trespass and resisting arrest. On May 7, 2007,
Detectives Harris and Posley transported N.H. from the juvenile detention center to an
interview room at the Rockford police station. Detective Harris informed N.H. of his
Miranda rights, and N.H. said that he understood his rights. Detective Harris told N.H. that
the police “had some information about a murder that [N.H.] was possibly involved in and
they wanted to ask him about it.” N.H. said “I did it.” N.H. did not explain what he meant or
provide any other information at that time. Because the police ordinarily video-record the
questioning of murder suspects, Detectives Harris and Posley stopped the interview, stepped
out of the room, and left N.H. inside.
¶ 22 When the interview resumed more than two hours later, Detective Simon Solis monitored
and video-recorded it. N.H. recanted and tried to explain why he falsely said that he “did it.”
Six times N.H. said that he did not know why he said he “did it.” N.H. also explained that
defendant had a motive to kill Lavontaye: as retaliation for the shooting of Marcellus Motton
a few weeks before Lavontaye’s murder. The trial court excluded the videotape, N.H.’s
statement “I did it,” and the detectives’ testimony about the interview.
¶ 23 C. N.H.’s Statements to Chaplain Fricks
¶ 24 On November 13, 2008, defense counsel filed a motion in limine to compel the testimony
of Chaplain Wayne Fricks regarding the murder of Lavontaye. The motion alleged that the
public defender’s investigator, Robert Faulkner, interviewed Chaplain Fricks and that the
State was provided details of the interview. Chaplain Fricks freely and voluntarily disclosed
to Faulkner N.H.’s statements in which he confessed to the murder of Lavontaye. Chaplain
Fricks freely and voluntarily disclosed that he then told defendant about N.H.’s confession.
Counsel argued that N.H.’s statements were admissible because (1) the statements were
against N.H.’s penal interest and (2) Chaplain Fricks waived his side of the clergy-penitent
privilege by disclosing N.H.’s statements.
¶ 25 On November 25, 2008, the court began hearing the motion to admit Chaplain Fricks’
testimony. Chaplain Fricks testified that he was an ordained Pentecostal minister and
employed by the Rockford Reachout Jail Ministry. Chaplain Fricks’ job was to conduct Bible
studies at both the juvenile detention center and the main jail. In 2007, Chaplain Fricks met
several times with N.H., who was an inmate at the detention center and had signed up for
one-on-one meetings with a chaplain.
¶ 26 When asked whether “the rules of the Pentecostal church” enjoined him from disclosing a
confession made during the course of his work, Chaplain Fricks said that it was “really up to
[his] own *** choosing.” Chaplain Fricks explained that he was allowed to disclose the
information if he believed it necessary to do so. He testified that nothing in his religious
affiliation prevented him from telling other people something that was said to him in
-5-
confidence, and he had no objection whatsoever to testifying about the things N.H. had told
him.
¶ 27 Chaplain Fricks testified that, at their first meeting, N.H. told him that he had done a lot
of bad things and felt tormented by his past. Chaplain Fricks told N.H. that he could “express
himself” if he wanted. N.H. responded that, as part of an altercation between his group and
another group, N.H. had shot and killed someone in the Blackhawk Projects. N.H. told
Chaplain Fricks “that he had shot somebody and that *** the guy that he shot [had] died.”
N.H. said that it was tormenting him and that he did not know “what to do with it.” N.H.
mentioned that a man named Blackie was charged with the crime. Chaplain Fricks described
N.H. as “very sincere.” The chaplain advised N.H. to “notify the authorities that [he had]
done this.”
¶ 28 Soon after the meeting with N.H., Chaplain Fricks met with defendant, who was charged
with Lavontaye’s murder and in jail. Defendant claimed innocence and told Chaplain Fricks
that the real shooter was a boy named Marcus. Chaplain Fricks knew that N.H.’s middle
name was Marcus. When the meeting began, Chaplain Fricks did not know that defendant
and N.H. were connected in any way, but as defendant described the incident, Chaplain
Fricks realized that defendant was talking about N.H. Identifying N.H. by first name,
Chaplain Fricks asked whether he was the shooter, and defendant responded, “Yeah, that’s
him.”
¶ 29 About one week after their first meeting, Chaplain Fricks told N.H. that he had spoken
with defendant. N.H. responded that he had tried to redeem himself by telling the detectives
about the incident, but that the detectives did not believe him.
¶ 30 Chaplain Fricks explained that, because the lives of defendant and N.H. were
“intertwined” and he was in the middle, he believed that he could tell each about
conversations he had with the other. Chaplain Fricks told defendant, Faulkner, and the
attorneys about N.H.’s confession. Chaplain Fricks also was aware that N.H. had confessed
to the detectives after their initial conversation.
¶ 31 The hearing resumed on October 29, 2009, at which time Michael Raridon, an attorney
appearing on N.H.’s behalf, asserted the clergy-penitent privilege and moved to strike
Chaplain Fricks’ testimony about his conversations with N.H. N.H. did not testify, Raridon
offered no other evidence in support of the privilege, and the parties proceeded directly to
argument.
¶ 32 Defense counsel asserted that, once Chaplain Fricks indicated a willingness to testify, the
burden shifted to N.H. to show that the testimony about his statements would violate the
rules of Chaplain Fricks’ religion. Counsel further argued that N.H. waived any potential
clergy-penitent privilege by speaking to the detectives. Raridon countered that any person
who holds himself out to be a spiritual counselor, like Chaplain Fricks, owes a “universal”
duty to maintain confidentiality and invoke the privilege on behalf of the penitent.
¶ 33 The trial court agreed with defense counsel that the burden had shifted to N.H. to show
that Chaplain Fricks’ disclosure was prohibited by the rules of his religion, and the State
admitted that Chaplain Fricks already had testified that it was not. Nevertheless, the court
found that, because Chaplain Fricks was working as a chaplain when he took N.H.’s
confession, N.H. presumably expected his conversation to be private. Based on a presumed
expectation of privacy, the court barred any evidence about N.H.’s statements to Chaplain
Fricks.
-6-
¶ 34 The court found absurd the notion that a person seeking spiritual counseling must first
ask a clergyman about the confidentiality rules of his religion before admitting or confessing
to criminal acts as part of the counseling. The court also rejected defense counsel’s
contention that N.H. waived the privilege when he spoke to detectives about the incident.
¶ 35 On September 2, 2009, following defendant’s conviction, defense counsel filed an
amended motion for a new trial, arguing, inter alia, that the trial court erred in excluding
N.H.’s statements to Chaplain Fricks. The motion challenged the court’s conclusion that
there could be no further inquiry into N.H.’s statements to Chaplain Fricks once N.H.
claimed the clergy-penitent privilege. The State responded that “[N.H.] was not even called
as a witness, which would be a precursor to attempting to use his statements as substantive
evidence.” The court denied the posttrial motion.
¶ 36 D. Direct Appeal
¶ 37 On direct appeal, defendant argued that (1) he was not proved guilty beyond a reasonable
doubt, because he did not match the description of the offender; (2) the trial court abused its
discretion in declining to give the jury the videotape that purportedly showed defendant at the
hospital around the time of the offense; (3) the court erred in refusing to suppress the
testimony of the three eyewitnesses who identified defendant as the offender; (4) the court
erred by excluding N.H.’s statement to the detectives; and (5) the court erred by refusing to
instruct the jury regarding the bias of a witness who had been arrested and charged with an
unrelated offense.
¶ 38 Defendant argued, inter alia, that N.H.’s hearsay statement, “I did it,” which he made to
the detectives, was admissible as a sufficiently trustworthy statement made against the
declarant’s penal interest. We observed that the trial court considered the relevant factors in
determining whether N.H.’s out-of-court statement against penal interest was sufficiently
trustworthy: (1) whether the statement was made spontaneously to a close acquaintance
shortly after the crime had occurred; (2) whether the statement was corroborated by other
evidence; (3) whether the statement was self-incriminating and against the declarant’s penal
interest; and (4) whether there was an adequate opportunity to cross-examine the declarant.
Chambers v. Mississippi, 410 U.S. 284, 300-01 (1973). In excluding the statement to the
detectives, the trial court emphasized that “what we have is simply a statement by [N.H.] ‘I
did it.’ Nothing more.” The court found that, though the statement was spontaneous, it was
not made shortly after the crime, which had occurred one month earlier, and it was made to
the detectives rather than to a close acquaintance. The court found that, though there was
some evidence that N.H. was aware of information that could be known only by someone
around the crime scene, N.H.’s statement was not corroborated by other evidence. The
videotape of the interview appeared to show that N.H. admitted his role to “give an all clear
signal” to defendant, take the gun from defendant after the shooting, and hand it off to
Trapper as defendant ran to the getaway car.
¶ 39 Noting that the video-recorded portion of N.H.’s interview was missing from the
appellate record, which limited our review, we concluded that the trial court did not abuse its
discretion in excluding N.H.’s statement to the detectives. We agreed with the trial court that
N.H.’s statement was not corroborated. Thomas, 2011 IL App (2d) 091061-U, ¶ 56. On direct
appeal, counsel did not challenge the exclusion of N.H.’s statements to Chaplain Fricks or
-7-
argue that the chaplain’s testimony would have provided the necessary corroboration for
N.H.’s statement to the detectives.
¶ 40 E. Postconviction Petition
¶ 41 On July 30, 2012, defendant filed a pro se postconviction petition alleging that appellate
counsel was ineffective for failing to allege trial counsel’s ineffectiveness. Among other
things, the petition claims that appellate counsel should have argued that trial counsel was
ineffective for inadequately investigating and presenting certain evidence that N.H. confessed
to the offense. The postconviction court summarily dismissed the petition as frivolous and
patently without merit, and this timely appeal followed.
¶ 42 II. ANALYSIS
¶ 43 A. Post-Conviction Hearing Act
¶ 44 On appeal, defendant argues that his claim regarding N.H.’s alleged confessions supports
reversing the summary dismissal of his petition and remanding the cause for further
postconviction proceedings. The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1
et seq. (West 2012)) provides a mechanism by which a criminal defendant can assert that his
conviction and sentence were the result of a substantial denial of his rights under the United
States Constitution, the Illinois Constitution, or both. 725 ILCS 5/122-1(a) (West 2012). A
postconviction proceeding is not an appeal from the judgment of conviction, but is a
collateral attack on the trial court proceedings. People v. English, 2013 IL 112890, ¶ 21. To
be entitled to postconviction relief, a defendant must establish a substantial deprivation of
federal or state constitutional rights in the proceedings that produced the challenged
judgment. English, 2013 IL 112890, ¶ 21.
¶ 45 The purpose of a postconviction proceeding is to permit inquiry into constitutional issues
that were not, and could not have been, adjudicated previously on direct appeal. English,
2013 IL 112890, ¶ 22. Issues that were raised and decided on direct appeal are barred by
res judicata, and issues that could have been raised on direct appeal, but were not, are
forfeited. English, 2013 IL 112890, ¶ 22. However, the doctrines of res judicata and
forfeiture are relaxed where fundamental fairness so requires, where the forfeiture stems
from the ineffective assistance of appellate counsel, or where the facts relating to the issue do
not appear on the face of the original appellate record. English, 2013 IL 112890, ¶ 22.
¶ 46 The Act provides a three-stage process for adjudicating postconviction petitions. English,
2013 IL 112890, ¶ 23. At the first stage, a trial court considers whether the postconviction
petition is frivolous or patently without merit. People v. Andrews, 403 Ill. App. 3d 654,
658-59 (2010). If the postconviction petition survives the first-stage review, it proceeds to the
second stage and is docketed “for further consideration in accordance with Sections 122-4
through 122-6.” 725 ILCS 5/122-2.1(b) (West 2012). At the second stage, counsel is
appointed and the pro se petition may be amended. Andrews, 403 Ill. App. 3d at 658. In
addition, the State may answer the petition or seek its dismissal. 725 ILCS 5/122-5
(West 2012). The proceedings advance to the third stage if the State answers the petition or
the court denies the State’s motion to dismiss. At the third stage, the postconviction petitioner
may submit evidence supporting his claim. Andrews, 403 Ill. App. 3d at 658-59; see 725
ILCS 5/122-6 (West 2012).
-8-
¶ 47 In this case, the trial court dismissed the petition at the first stage, concluding that
defendant’s claim is frivolous and patently without merit. At the first stage in the
postconviction process, the trial court reviews the defendant’s petition on its own, without
input from the parties. People v. Brown, 236 Ill. 2d 175, 184 (2010). During this stage, the
trial court may review the court file, the transcripts, and any appellate court actions. Brown,
236 Ill. 2d at 184. At this stage, the court treats allegations of fact as true so long as those
allegations are not affirmatively rebutted by the record. People v. Bethel, 2012 IL App (5th)
100330, ¶ 10. Any petition deemed frivolous or patently without merit must be dismissed.
725 ILCS 5/122-2.1(a)(2) (West 2012). A petition is frivolous or patently without merit
where it has no arguable basis either in law or in fact in that it is based on an indisputably
meritless legal theory or fanciful factual allegations. People v. Hodges, 234 Ill. 2d 1, 16
(2009). An example of an indisputably meritless legal theory is one that is completely
contradicted by the record. Hodges, 234 Ill. 2d at 16. Fanciful factual allegations include
those that are fantastic or delusional. Brown, 236 Ill. 2d at 185.
¶ 48 A pro se petitioner is not required to allege facts supporting all elements of a
constitutional claim. People v. Mars, 2012 IL App (2d) 110695, ¶ 32. Petitions filed pro se
must be given a liberal construction and are to be viewed with a lenient eye, allowing
borderline cases to proceed. Because a pro se petitioner will likely be unaware of the precise
legal basis for his claim, the threshold for survivrfed4.o;pal is low, and a pro se petitioner
need allege only enough facts to make out a claim that is arguably constitutional for purposes
of invoking the Act. Mars, 2012 IL App (2d) 110695, ¶ 32 (citing Hodges, 234 Ill. 2d at 9).
“However low the threshold, the petition must ‘clearly set forth’ the respects in which the
petitioner’s constitutional rights were violated. (Internal quotation marks omitted.)” Mars,
2012 IL App (2d) 110695, ¶ 32 (quoting Hodges, 234 Ill. 2d at 9). This means that the
pleading must bear some relationship to the issue raised on appeal. Mars, 2012 IL App (2d)
110695, ¶ 32. Liberal construction does not mean that we distort reality. Mars, 2012 IL App
(2d) 110695, ¶ 32. We review de novo the dismissal of a postconviction petition at the first
stage. People v. Coleman, 183 Ill. 2d 366, 387-88 (1998).
¶ 49 B. Ineffective Assistance of Counsel
¶ 50 Defendant’s postconviction claim is based on the alleged ineffectiveness of counsel on
direct appeal and at trial. Both the United States and Illinois Constitutions guarantee a
defendant the right to effective assistance of counsel. See U.S. Const., amend. VI; Ill. Const.
1970, art. I, § 8. The purpose of this guarantee is to ensure that the defendant receives a fair
trial. Strickland v. Washington, 466 U.S. 668, 684-85 (1984); People v. Pineda, 373 Ill. App.
3d 113, 117 (2007). The ultimate focus of the inquiry is on the fundamental fairness of the
challenged proceedings. Strickland, 466 U.S. at 696; Pineda, 373 Ill. App. 3d at 117.
“However, there is a strong presumption of outcome reliability, so to prevail, a defendant
must show that counsel’s conduct ‘so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.’ ” Pineda, 373 Ill.
App. 3d at 117 (quoting Strickland, 466 U.S. at 686).
¶ 51 Claims of ineffective assistance of counsel are generally evaluated under the two-part test
set forth in Strickland, 466 U.S. at 687, and adopted by our supreme court in People v.
Albanese, 104 Ill. 2d 504, 525-26 (1984). People v. Harris, 225 Ill. 2d 1, 20 (2007). Under
Strickland, defense counsel was ineffective only if (1) counsel’s performance fell below an
-9-
objective standard of reasonableness; and (2) counsel’s error prejudiced the defendant.
Failure to establish either prong is fatal to the claim. Strickland, 466 U.S. at 687; Pineda, 373
Ill. App. 3d at 117.
¶ 52 We assess counsel’s performance by using an objective standard of competence under
prevailing professional norms. People v. Ramsey, 239 Ill. 2d 342, 433 (2010). To establish
deficient performance, the defendant must overcome the strong presumption that counsel’s
action or inaction was the result of sound trial strategy. Ramsey, 239 Ill. 2d at 433. As a
result, counsel’s strategic choices that are made after investigation of the law and the facts
are virtually unassailable. Ramsey, 239 Ill. 2d at 433. The prejudice prong of the Strickland
test can be satisfied if the defendant can show that counsel’s deficient performance rendered
the result of the trial unreliable or the proceeding fundamentally unfair. People v. Evans, 209
Ill. 2d 194, 220 (2004). In the context of a first-stage postconviction claim, a defendant need
show only that he can arguably meet those two standards, i.e., it is arguable that his counsel
was deficient and it is arguable that the outcome of his case would have been different absent
the deficient representation. Hodges, 234 Ill. 2d at 17.
¶ 53 Defendant’s pro se postconviction petition contains a claim with the following heading:
“Petitioner was denied his sixth amendment right to effective assistance of appellate counsel
where he failed to raise as error on appeal trial counsel’s failure to investigate and present
available facts and evidence that [N.H.] confessed to committing the murder at bar.” In
support of this conclusion, the claim alleges the following facts:
“The court suppressed the tape [of N.H. recanting the statement ‘I did it’ made to
the detectives], N.H.’s statement [‘I did it’], and the police witnesses’ testimony about
either interview [citation], over the defense request to introduce evidence of the first
interview to the jury. [Citation.] Further, conversations with the jail pastor, Mr.
Fricks, wherein Mr. N.H. confessed to the murder, also were suppressed.
***
In this case further investigation was imperative. As was admitted at the trial by
Det. Harris, who testified that Mr. N.H. stated ‘I did it’ when asked about the murder
at bar. Trial counsel had an affirmative obligation to conduct an inquiry where facts,
accessible to him by the exercise of minimal diligence, would raise genuine questions
about the defendant [sic] innocence. By failing to take any steps to corroborate Mr.
N.H. [sic] statement ‘I did it,’ trial counsel’s performance was beyond credible dispute
that the State’s case presented against the defendant was not subjected to the
‘adversarial testing’ required by Strickland.
Had appellate counsel on direct appeal raised as error trial counsel’s
ineffectiveness for failure to investigate Mr. N.H.’s statement ‘I did it,’ there is a
reasonable probability that, had Mr. N.H. [sic] statement been corroborated by other
evidence, the result of the proceedings would have been different.” (Emphases added.)
¶ 54 To the petition, defendant attached an affidavit in which he stated that “[o]n November
25, 2008, pastor Wayne Fricks testified that [N.H.] told him that he had shot someone in the
Blackhawk Housing Project, and that the guy had died.” Defendant also attached a transcript
of Chaplain Fricks’ testimony from the hearing.
- 10 -
¶ 55 C. Forfeiture
¶ 56 On appeal, defendant makes two arguments that the petition states the gist of a
constitutional claim and therefore should proceed to the second stage of postconviction
proceedings. First, defendant argues that “the trial court was wrong when it ruled that
[N.H.’s] confession was barred by the clergy-penitent privilege, and appellate counsel was
ineffective when he failed to raise this fully-preserved issue on direct appeal.” Second, in a
related argument, defendant asserts that appellate counsel “erred in failing to argue that
[N.H.’s] confession to Fricks provided sufficient corroboration for admission of [N.H.’s]
subsequent confession to detectives as a statement against penal interest.”
¶ 57 The State argues that defendant’s appellate arguments are forfeited because they “differ[ ]
substantially” from the pro se postconviction petition. See 725 ILCS 5/122-3 (West 2012)
(“Any claim of substantial denial of constitutional rights not raised in the original or an
amended petition is waived.”).
¶ 58 The State concedes that defendant’s appellate arguments and the petition each claim
ineffective assistance of appellate counsel based on alleged errors related to the exclusion of
N.H.’s statements. However, the State points out that defendant’s appellate arguments and
the petition diverge regarding (1) to whom N.H. confessed and (2) who is at fault for the
allegedly erroneous exclusion of the confession. On appeal, defendant attributes the error to
the trial court for excluding N.H.’s confession to Chaplain Fricks. The petition attributes the
error to trial counsel for failing to do more to corroborate N.H.’s confession to the detectives.
¶ 59 The State concludes that defendant has forfeited the arguments articulated in this appeal
because the petition does not claim that (1) appellate counsel was ineffective for failing to
argue that the trial court erred in barring N.H.’s statements to Chaplain Fricks or (2)
appellate counsel was ineffective for failing to argue that N.H.’s statements to Chaplain
Fricks would have corroborated the subsequent incriminating statement to the police.
According to the State, equating the petition’s claim of ineffective assistance of appellate
counsel with a “completely different” claim of ineffective assistance of appellate counsel
would exceed the liberal construction afforded pro se postconviction petitions. The State
essentially argues that we should disregard defendant’s appellate arguments regarding N.H.’s
alleged confession because the petition contains too much detail regarding to whom the
statements were made and who is allegedly at fault for their exclusion.
¶ 60 A pro se petition should not be construed so strictly during the first stage of
postconviction proceedings. The supreme court has held that, to survive summary dismissal,
a pro se postconviction petitioner is not required to allege facts supporting all elements of a
constitutional claim. Brown, 236 Ill. 2d at 188. In Hodges, the supreme court expressed
concern that pro se petitions should be given a liberal construction and should be reviewed
“ ‘with a lenient eye, allowing borderline cases to proceed.’ ” Hodges, 234 Ill. 2d at 21
(quoting Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983)). “While in a given case
the pro se defendant may be aware of all the facts pertaining to his claim, he will, in all
likelihood, be unaware of the precise legal basis for his claim or all the legal elements of that
claim.” People v. Edwards, 197 Ill. 2d 239, 245 (2001). It is for this reason that a pro se
defendant is required to present only the “gist” of a constitutional claim, which is “something
less than a completely pled or fully stated claim.” Edwards, 197 Ill. 2d at 245.
¶ 61 In the heading of the claim, the petition does not distinguish between N.H.’s statements
to the detectives and to Chaplain Fricks. The petition alleges that the trial court wrongly
- 11 -
excluded the following evidence of N.H.’s confession: (1) the video-recording of N.H.’s
interview with the detectives, (2) N.H.’s statement to the detectives, “I did it,” (3) the
detectives’ testimony about the interview, and (4) N.H’s confession to Chaplain Fricks. To
the petition, defendant attached his affidavit, which refers to the hearing on Chaplain Fricks’
testimony. Defendant also attached a transcript from that hearing, where Chaplain Fricks
identified Lavontaye as the victim and described specific inculpatory statements by N.H. The
petition concludes that there is a reasonable probability that, had the statement “I did it” been
corroborated by other evidence, the result of the proceedings would have been different.
¶ 62 A liberal construction of the pro se petition, defendant’s affidavit, and the record shows
that the petition alleges that (1) appellate counsel was ineffective for omissions on direct
appeal, (2) trial counsel failed to take the proper steps to corroborate N.H.’s statement “I did
it,” (3) Chaplain Fricks would have testified at trial that N.H. confessed, (4) the trial court
excluded N.H.’s separate statements to the detectives and to Chaplain Fricks, and (5) N.H.’s
statement to the detectives would have been admitted upon proper corroboration. The logical
conclusion to be drawn from these allegations is what defendant argues in this appeal:
Chaplain Fricks’ testimony is the “other evidence” that should have been admitted to
corroborate N.H.’s statement to the detectives.
¶ 63 Therefore, we reject the State’s forfeiture argument and conclude that the petition states
the gist of a constitutional claim to survive the first stage of postconviction proceedings. The
petition sufficiently alleges that counsel on direct appeal was ineffective for failing to argue
that N.H’s statements to the detectives and to Chaplain Fricks corroborated each other and
should have been admitted. After linking N.H.’s statements to the detectives and to Chaplain
Fricks, the petition asserts that N.H.’s alleged confession should have been admitted and that
appellate counsel and trial counsel were ineffective for failing to do more to achieve that
result. If counsel on direct appeal had argued that Chaplain Fricks’ testimony was
erroneously excluded, defendant could have been granted a new trial where N.H.’s
inculpatory statements would be admitted.
¶ 64 The State argues that this case is similar to Mars, where this court affirmed the summary
dismissal of a pro se postconviction petition on the ground that it did not match the argument
set forth on appeal. In the petition, Mars alleged that “ ‘[d]efense counsel failed to challenge
the sufficiency of the grand jury indictment which omitted essential elements of the charges.
But for, [sic] counsel’s ineffective assistance of counsel’s [sic] no trier of fact could have
found petitioner guilty beyond any reasonable doubt of first degree murder.’ ” Mars, 2012 IL
App (2d) 110695, ¶ 31. However, on appeal from the summary dismissal, Mars argued that
counsel on direct appeal was ineffective for not arguing that the 2007 indictment was subject
to compulsory joinder with the 2005 indictment and violated Mars’ speedy-trial rights. As in
this case, the State responded that the appellate argument was forfeited because it was not
articulated in the petition. Mars, 2012 IL App (2d) 110695, ¶ 31.
¶ 65 We observed that Mars’ petition alleged that his “defense counsel” was ineffective for
not challenging the indictment for lack of essential elements of the crimes charged. Mars,
2012 IL App (2d) 110695, ¶ 33. As such, the petition addressed trial counsel’s failure to
bring the allegedly faulty indictment to the trial court’s attention and the consequences of that
omission at trial. In contrast, postconviction appellate counsel explicitly referred to errors of
direct appellate counsel. We held that “[n]o matter how liberally we construe the [petition’s]
allegation, viewing it in context, we cannot conclude that by this allegation defendant
- 12 -
actually raised a claim relating to appellate counsel’s failure on direct appeal to raise the
issue of compulsory joinder and violation of his right to a speedy trial.” (Emphasis omitted.)
Mars, 2012 IL App (2d) 110695, ¶ 33. The subject matter raised in the petition could not
have been compulsory joinder and speedy trial in the context of something his trial attorney
failed to do, because trial counsel, in fact, brought a motion to dismiss the 2007 indictment
based on compulsory joinder and a violation of Mars’ right to a speedy trial. We concluded
that the issues of compulsory joinder and speedy trial were forfeited as they were not raised
in the petition, and we affirmed the first-stage dismissal of the petition. Mars, 2012 IL App
(2d) 110695, ¶ 33.
¶ 66 Mars is distinguishable from this case. In Mars, the petition faulted trial counsel for
omissions related to the sufficiency of the charging instrument, while the postconviction
appellate argument faulted direct appellate counsel for omissions related to compulsory
joinder and speedy-trial rights, which trial counsel had previously addressed. The petition
and the postconviction appellate argument shared no underlying subject matter and identified
different attorneys as having rendered ineffective assistance. Here, the petition and the
postconviction appellate arguments both allege ineffectiveness of appellate counsel for
omissions related to the underlying issue of the admissibility of N.H.’s confession.
¶ 67 The State implies that Mars permits a narrower reading of claims for purposes of
first-stage postconviction review when the pro se petition is coherent and organized and
displays a general awareness of legal concepts. Indeed, we noted that Mars’ petition “set[ ]
forth the record facts in a logical fashion with appropriate record citations and raise[d]
specific legal challenges with regard to appellate counsel, such as counsel’s failure to raise a
‘Brady Violation’ and the State’s failure to connect him to the sepsis that killed the victim.”
Mars, 2012 IL App (2d) 110695, ¶ 33. However, that observation should not be viewed as
holding a well-reasoned and articulate pro se petition to a higher standard than one that is
drafted less artfully.
¶ 68 We further reject the State’s argument that People v. Cole, 2012 IL App (1st) 102499,
supports affirming the summary dismissal of the petition. A jury convicted Cole of two
counts of attempted first-degree murder, and on direct appeal he argued that trial counsel
rendered ineffective assistance on three grounds: (1) failure to file a motion to quash his
arrest and suppress evidence premised on the lack of probable cause for his arrest; (2) failure
to object to leading questions of a victim and to a police officer’s testimony; and (3) failure
to object to “ ‘prejudicial and baseless’ ” closing arguments by the prosecutor, including a
comment that a victim’s testimony was “ ‘credible.’ ” Cole, 2012 IL App (1st) 102499, ¶ 3.
Cole also argued that the evidence was insufficient to prove him guilty beyond a reasonable
doubt. The Appellate Court, First District, rejected each argument and affirmed the
convictions.
¶ 69 Cole filed a pro se postconviction petition, alleging, inter alia, that (1) the trial court
violated Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) by failing to “ ‘properly
question the venire’ ” regarding the principles underlying the trial and (2) the prosecutor
engaged in misconduct during closing argument when he injected his personal belief by
characterizing a victim as “ ‘a credible witness,’ ” each of which Cole alleged violated his
right to due process. Cole, 2012 IL App (1st) 102499, ¶ 4. The postconviction court
dismissed the petition at the first stage of the proceedings, concluding that the two claims
- 13 -
could have been raised on direct appeal and that they were rebutted by the record. Cole, 2012
IL App (1st) 102499, ¶ 5.
¶ 70 Postconviction appellate counsel argued that the petition presented the “gist” of two
constitutional claims based on issues that direct appellate counsel failed to raise. First, Cole
claimed that the trial court failed to strictly abide by Rule 431(b) in the course of questioning
prospective jurors. Second, he claimed that prosecutorial misconduct occurred during the
State’s closing argument when it commented on the “credibility” of a prosecution witness.
Postconviction appellate counsel argued that direct appellate counsel’s failure to raise these
issues rendered his assistance constitutionally ineffective. Cole, 2012 IL App (1st) 102499,
¶ 9.
¶ 71 The State argued that Cole had forfeited the arguments raised in the postconviction
appeal, because the petition did not refer to direct appellate counsel’s performance. Cole
responded that “ ‘[a] petitioner who raises a trial error in a post-conviction petition, asserting
the claim has merit, also necessarily alleges the ineffectiveness of the appellate attorney who
was to blame for failing to raise and preserve the claim on direct appeal.’ ” Cole, 2012 IL
App (1st) 102499, ¶ 11. The First District rejected that assertion, relying on People v. Jones,
213 Ill. 2d 498, 504 (2004), to hold that “ ‘implicit’ claims in the defendant’s postconviction
petition may not be raised for the first time on appeal when those postconviction issues were
never ruled upon by the circuit court.” Cole, 2012 IL App (1st) 102499, ¶ 13.
¶ 72 The stark differences between the petitions in the two cases illustrate that the Cole court’s
reliance on Jones was misplaced. Following Jones’s conviction, he filed a pro se
postconviction petition that was a preprinted form with blank spaces for handwritten text.
One paragraph was intended to present the basis of the petition and read as follows:
“ ‘That petitioner contends, as supported by the attached affidavits, that he was
denied his right to __________ guaranteed by the _______ and Fourteenth
Amendments of the United States Constitution; and that such denial is not reflected
on the record of the appeal of his conviction:
(a) [State here how you were denied a fair trial]
(b) [Same as above]’ ” Jones, 213 Ill. 2d at 502.
¶ 73 Jones wrote the words “effective assistance of counsel” and “Sixth,” respectively, in the
blank spaces. Jones did not provide any elaboration in either subparagraph (a) or (b). Jones
verified the petition by attaching an affidavit, but the affidavit contained nothing more than
Jones’s notarized signature attesting to the truthfulness of the allegations in the petition.
Jones, 213 Ill. 2d at 502. The trial court summarily dismissed the petition as frivolous and
patently without merit, stating that the petition “ ‘completely failed to assert any claim at all,
much less even the gist of a constitutional claim.’ ” Jones, 213 Ill. 2d at 502.
¶ 74 On postconviction appellate review, counsel argued for the first time that the trial court
erroneously admonished Jones under Illinois Supreme Court Rule 605 (eff. Oct. 1, 2001).
The First District affirmed the summary dismissal on the ground that Jones had “failed to
present ‘any detail whatsoever’ in his petition–‘[m]erely alleging he was denied his sixth
amendment right to effective assistance of counsel, with nothing more, [was] insufficient.’ ”
Jones, 213 Ill. 2d at 502-03 (quoting People v. Jones, 341 Ill. App. 3d 103, 107 (2003)). On
appeal to the supreme court, counsel conceded that the petition did not satisfy even the low
threshold of presenting “a modest amount of detail,” even without legal argument or citation
- 14 -
to legal authority. Jones, 213 Ill. 2d at 504 (citing People v. Gaultney, 174 Ill. 2d 410, 418
(1996)).
¶ 75 In affirming the summary dismissal, the supreme court commented on certain challenges
encountered by postconviction appellate counsel on review of a first-stage dismissal. Because
counsel is appointed for the first time on appeal from a summary dismissal, postconviction
appellate counsel often spots errors that the petition did not draw to the trial court’s attention.
The supreme court observed:
“Stated bluntly, the typical pro se litigant will draft an inartful pleading which does
not survive scrutiny under the ‘frivolity/patently without merit’ standard of section
122-2.1, and it is only during the appellate process, when the discerning eyes of an
attorney are reviewing the record, that the more complex errors that a nonattorney
cannot glean are discovered. The appellate attorney, not wishing to be remiss in his or
her duty, then adds the newly discovered error to the appeal despite the fact that the
claim was never considered by the trial court in the course of its ruling. The thought
process behind the attorney’s actions is clear–the attorney is zealously guarding the
client’s rights and is attempting to conserve judicial resources by raising the claim
expeditiously at the first available chance. These goals are laudable, but they
nonetheless conflict with the nature of appellate review and the strictures of the Act.”
Jones, 213 Ill. 2d at 504-05.
¶ 76 The Jones court then stated generally that claims not raised in a pro se postconviction
petition may not be raised for the first time on appeal from the first-stage dismissal of that
petition. Jones, 213 Ill. 2d at 505. The Cole court interpreted this language too broadly to
hold that postconviction appellate counsel may not raise implicit claims derived from a
pro se petition’s factual allegations.
¶ 77 The Jones court did not hold that a petition’s legal arguments must be explicit or that
claims implied by the factual allegations of a petition are forfeited. In fact, such a holding
would be inconsistent with section 122-2 of the Act, which provides, in part, that
“[a]rgument *** shall be omitted from the petition.” 725 ILCS 5/122-2 (West 2012). Instead,
Jones’s petition failed because it alleged ineffective assistance of counsel but contained no
factual detail whatsoever. The petition neither identified which attorney erred nor alleged any
facts from which an error could be inferred.
¶ 78 Regardless of our skeptical view of the Cole court’s rationale, we need not quarrel with
the outcome, because Cole is factually distinguishable from this case. Cole’s petition
attributed the trial errors to the trial court and failed to allege ineffective assistance of either
trial counsel or direct appellate counsel. In contrast, defendant’s petition alleges that both
trial counsel and direct appellate counsel were ineffective. His postconviction appellate
argument deviates from the petition only in that he argues that appellate counsel was
ineffective for failing to attribute the errors to the trial court.
¶ 79 This case is more like Hodges, which also involved a pro se petition alleging ineffective
assistance of counsel and containing factual allegations that ultimately supported a different,
but related, legal theory of postconviction relief. In Hodges, the defendant was convicted of
first-degree murder, and after a direct appeal he filed a pro se postconviction petition. The
petition alleged that his trial counsel was ineffective for failing to produce evidence that
would have supported his claim of self-defense. Specifically, the petition alleged, among
other things, that counsel failed to investigate or interview three potential witnesses whose
- 15 -
testimony would have corroborated his theory of self-defense, and he provided a detailed
description of their expected testimony. Hodges, 234 Ill. 2d at 6.
¶ 80 Hodges’ theory of defense at trial was twofold. Counsel argued that Hodges fired toward
the victim in self-defense, reasonably believing that his life was in danger, and that Hodges
therefore should be acquitted of first-degree murder. In the alternative, counsel argued that, if
Hodges’ belief that his life was in danger was found to be unreasonable, the verdict should be
second-degree murder. Over the State’s objection, the trial court determined that there was
sufficient evidence to warrant instructing the jury on self-defense and on second-degree
murder based on an actual but unreasonable belief that use of force was justified. The jury
was instructed as to each of these defenses. Hodges, 234 Ill. 2d at 19.
¶ 81 On appeal from the summary dismissal of the petition, the appellate court held that, even
if the three witnesses had testified, their testimony would not have supported Hodges’ theory
that he acted in self-defense. The appellate court did not address whether this testimony
would have supported a theory of “unreasonable belief” second-degree murder. The supreme
court agreed that the testimony of the three witnesses would not have supported Hodges’
theory of self-defense. The supreme court concluded that, with regard to the theory of
self-defense, the claim that counsel was ineffective for failing to investigate the three
witnesses was completely contradicted by the record. Hodges, 234 Ill. 2d at 20.
¶ 82 However, the supreme court did not reach the same conclusion regarding “unreasonable
belief” second-degree murder. As part of the jury instruction on second-degree murder, the
jury was instructed not to convict Hodges of first-degree murder if it found, by a
preponderance of the evidence, that Hodges, at the time of the killing, believed that
circumstances existed that would justify the deadly force he used, but this belief was
unreasonable. In the supreme court’s view, it was “at least arguable” that testimony from
three witnesses indicating that the victim was armed on the night of the shooting would have
supported a theory that Hodges believed, albeit unreasonably, that his actions were
justifiable. Hodges, 234 Ill. 2d at 20-21.
¶ 83 In reviewing the summary dismissal of the petition, the appellate court did not address
whether the three witnesses’ testimony would have supported a theory of second-degree
murder. According to the State, the reason the appellate court addressed only self-defense
and not second-degree murder was that Hodges’ petition focused only on the impact the
witnesses’ testimony would have had on self-defense. Hodges did not expressly allege that
this same testimony would have supported second-degree murder. The State argued that
Hodges, though acting pro se, “ ‘chose’ ” to focus only on self-defense and not on
second-degree murder and that he should be held to that choice. Hodges, 234 Ill. 2d at 21.
¶ 84 The supreme court rejected that argument, concluding that “[t]he State’s strict
construction of [Hodges’] petition is inconsistent with the requirement that a pro se petition
be given a liberal construction.” Hodges, 234 Ill. 2d at 21. The court observed that the issue
of whether the petition, which focused on self-defense, could be said to have included
allegations regarding “ ‘unreasonable belief’ ” second-degree murder, also known as
“imperfect self-defense,” was at minimum the type of “ ‘borderline’ ” question that, under a
liberal construction, should be answered in Hodges’ favor. Hodges, 234 Ill. 2d at 21.
¶ 85 This case is similar to Hodges. Like in Hodges, the State asks us to hold defendant, who
also filed his petition pro se, to his “choice” of focusing on trial counsel’s handling of N.H.’s
statement to the detectives, rather than consider the related arguments of whether the trial
- 16 -
court erred in excluding N.H.’s statements to Chaplain Fricks and whether the chaplain’s
testimony would have corroborated the statement to the detectives. Consistent with Hodges,
we conclude that the State’s strict construction of the petition is inconsistent with the
requirement that a pro se petition be given a liberal construction. See Hodges, 234 Ill. 2d at
21. Whether the petition, which focuses on trial counsel’s handling of N.H.’s statement to the
detectives, could be said to also include allegations regarding trial counsel’s handling of
Chaplain Fricks’ testimony regarding the same events is at minimum the type of “borderline”
question that, under a liberal construction, should be answered in defendant’s favor.
¶ 86 We reiterate that, when a pro se petition is summarily dismissed, postconviction appellate
counsel may not present novel arguments that bear no relationship to the petition. To do so
would circumvent the Act by substituting appellate advocacy for second-stage postconviction
proceedings in the trial court, where counsel is appointed and the petition may be amended.
Any concern of distorting the Act is unwarranted here, however, as defendant has not
presented a novel claim in this appeal. Both in the petition and on appeal from the summary
dismissal, defendant has (1) alleged ineffective assistance of appellate counsel, (2) addressed
the same underlying subject matter, i.e. N.H.’s confessions to the detectives and to Chaplain
Fricks, and (3) identified as error the ruling on Chaplain Fricks’ testimony.
¶ 87 On appeal from the summary dismissal of defendant’s pro se petition, counsel needed to
tailor the arguments to the petition’s factual allegations, which caused a modest departure
from the legal conclusion contained in the petition. The present arguments are not forfeited,
because the assertions in the petition need bear only “some relationship” to the arguments
raised on appeal. See Mars, 2012 IL App (2d) 110695, ¶ 32.
¶ 88 The State suggests that defendant would not be prejudiced by a finding of forfeiture,
because he could file another petition under the Act, restating his present appellate arguments
regarding Chaplain Fricks. The Act provides that “[o]nly one petition may be filed by a
petitioner under this Article without leave of the court.” 725 ILCS 5/122-1(f) (West 2012). A
court may grant leave to file a successive petition “only if a petitioner demonstrates cause for
his or her failure to bring the claim in his or her initial post-conviction proceedings and
prejudice results from that failure.” 725 ILCS 5/122-1(f) (West 2012). “To establish ‘cause,’
the defendant must show some objective factor external to the defense impeded his ability to
raise the claim in the initial postconviction proceeding.” People v. Coleman, 2013 IL 113307,
¶ 82 (citing People v. Pitsonbarger, 205 Ill. 2d 444, 460 (2002)). “To establish ‘prejudice,’
the defendant must show the claimed constitutional error so infected his trial that the
resulting conviction violated due process.” Coleman, 2013 IL 113307, ¶ 82 (citing
Pitsonbarger, 205 Ill. 2d at 464). This is certainly a higher burden than defendant would face
in seeking leave to file a successive petition.
¶ 89 The possibility of defendant’s obtaining leave to file a successive petition is not a basis
for finding that his present appellate arguments are forfeited. Pro se petitions should be
viewed with a lenient eye, needing to bear only “some relationship” to the issue raised on
appeal, and the ability to file a successive petition is not relevant to the review of a first-stage
dismissal.
¶ 90 D. Clergy-Penitent Privilege
¶ 91 On appeal, defendant argues that “the trial court was wrong when it ruled that [N.H.’s]
confession was barred by the clergy-penitent privilege, and appellate counsel was ineffective
- 17 -
when he failed to raise this fully-preserved issue on direct appeal.” We agree with defendant,
but only to the extent that he raises the gist of a constitutional claim at the first stage of
postconviction proceedings.
¶ 92 The trial court cited the clergy-penitent privilege as authority for excluding Chaplain
Fricks’ testimony. The privilege is codified in section 8-803 of the Code of Civil Procedure
(Code), which provides as follows:
“Clergy. A clergyman or practitioner of any religious denomination accredited by the
religious body to which he or she belongs, shall not be compelled to disclose in any
court, or to any administrative board or agency, or to any public officer, a confession
or admission made to him or her in his or her professional character or as a spiritual
advisor in the course of the discipline enjoined by the rules or practices of such
religious body or of the religion which he or she professes, nor be compelled to
divulge any information which has been obtained by him or her in such professional
character or as such spiritual advisor.” (Emphasis added.) 735 ILCS 5/8-803 (West
2012).
¶ 93 The fundamental rule of statutory interpretation is to ascertain and give effect to the
intent of the legislature, and the best indication of that intent is a statute’s language, given its
plain and ordinary meaning. People v. McCarty, 223 Ill. 2d 109, 124 (2006). “When the
statutory language is clear and unambiguous, it must be applied as written without resort to
extrinsic aids of statutory interpretation.” Gaffney v. Board of Trustees of the Orland Fire
Protection District, 2012 IL 110012, ¶ 56. “We will not depart from the plain statutory
language by reading into it exceptions, limitations, or conditions that conflict with the
expressed intent of the legislature.” Gaffney, 2012 IL 110012, ¶ 56.
¶ 94 Before evidence is excluded as privileged, the party asserting the privilege must establish
all of the privilege’s constituent elements. People v. Diercks, 88 Ill. App. 3d 1073, 1077
(1980). Section 8-803 of the Code allows the clergy-penitent privilege to be raised when
disclosure by the clergyman is “enjoined by the rules or practices of such religious body or of
the religion which he or she professes.” 735 ILCS 5/8-803 (West 2012); see People v.
Burnidge, 279 Ill. App. 3d 127, 131 (1996); People v. Bole, 223 Ill. App. 3d 247, 262 (1991).
The clergyman cannot be “compelled to divulge any information which has been obtained by
him or her in such professional character or as such spiritual advisor.” 735 ILCS 5/8-803
(West 2012); see Burnidge, 279 Ill. App. 3d at 131; Bole, 223 Ill. App. 3d at 262. The
privilege belongs both to the person making the statement and to the clergyman. Burnidge,
279 Ill. App. 3d at 131; Bole, 223 Ill. App. 3d at 262-63. When the clergyman does not object
to testifying, the burden shifts to the person asserting the privilege to show that disclosure is
enjoined by the rules or practices of the relevant religion. Diercks, 88 Ill. App. 3d at 1077.
¶ 95 Before trial, N.H. argued that Chaplain Fricks could not testify about their conversations,
because he would be disclosing “a confession or admission made to him or her in his or her
professional character or as a spiritual advisor in the course of the discipline enjoined by the
rules or practices of such religious body or of the religion which he or she professes.” 735
ILCS 5/8-803 (West 2012). When Chaplain Fricks withdrew his objection to testifying, the
burden shifted to N.H. to show that Chaplain Fricks’ disclosure was prohibited by the rules
of his religion. The State admitted that Chaplain Fricks already had testified that the rules of
his religion did not prohibit the disclosure, and N.H. did not offer any evidence to the
contrary. Under the plain and ordinary meaning of the statutory language, the court’s
- 18 -
determination that section 8-803 barred Chaplain Fricks’ testimony is not supported by the
evidence adduced at the hearing.
¶ 96 The trial court found compelling N.H.’s expectation of confidentiality, but this court has
held that the penitent’s expectation does not affect the application of section 8-803. In Bole,
Bole argued that a conversation with his minister, during which he confessed to a crime and
sought “spiritual help,” was privileged under section 8-803. This court rejected the claim of
privilege because the minister testified that he had told Bole before the conversation that he
was ineligible for counseling because he had previously lied to the minister. This court
concluded that Bole’s admissions “were not obtained by the minister in his professional
character or as a spiritual advisor.” Bole, 223 Ill. App. 3d at 263.
¶ 97 We rejected Bole’s argument that the “perception” of the penitent determines whether the
privilege applies. Bole, 223 Ill. App. 3d at 263. We held that, although the statute is designed
to protect those communications between clergymen and laymen that originate in a
confidence that they will not be disclosed, the statute does not provide that the penitent’s
“perception” determines when this confidence arises. If this were the case, there would be no
reason to limit the privilege to those situations where a confession or admission is enjoined
from disclosure by the rules or practices of the religious body or religion. Regardless of the
existence of such rules or practices, a defendant could merely assert that he believed the
statements were communicated in confidence and that therefore the privilege applied. Bole,
223 Ill. App. 3d at 263.
¶ 98 Bole could not invoke section 8-803 to bar the minister from testifying about their
conversations, regardless of Bole’s expectation of confidentiality. Likewise, N.H. may not
rely on his expectation of confidentiality to invoke section 8-803 to prevent Chaplain Fricks
from testifying.
¶ 99 The State alternatively contends that N.H.’s statements to Chaplain Fricks were properly
excluded as vague and unreliable. At the first stage of postconviction proceedings, the
petition must be liberally construed and taken as true, and the postconviction court may not
engage in fact finding. People v. Hommerson, 2013 IL App (2d) 110805, ¶ 7. Consideration
of the petition and the record demonstrates the existence of a factual issue that requires
advancing the petition to the second stage. Stated another way, the record does not contradict
the allegations of the petition such that defendant’s legal theory of the case is indisputably
meritless. See Hodges, 234 Ill. 2d at 16.
¶ 100 Defendant’s pro se petition states the gist of a constitutional claim under Strickland in
that direct appellate counsel’s performance arguably fell below an objective standard of
reasonableness and the error arguably prejudiced defendant. See Strickland, 466 U.S. at 687.
Failing to raise on direct appeal the potentially meritorious claim for a new trial in light of
the exclusion of Chaplain Fricks’ testimony was arguably objectively unreasonable and not a
matter of trial strategy. See Ramsey, 239 Ill. 2d at 433. Moreover, defendant has shown that
counsel’s performance arguably rendered the result of the trial unreliable in that Chaplain
Fricks’ testimony could have affected the verdict by proving defendant’s innocence. See
Evans, 209 Ill. 2d at 220.
- 19 -
¶ 101 E. Credit for Presentence Custody
¶ 102 Finally, defendant asks that we correct the mittimus to show that he spent 893 days in
presentence custody. Section 5-4.5-100(b) of the Unified Code of Corrections provides that
an offender shall be given credit against his prison sentence for time spent in custody as a
result of the offense for which the sentence was imposed. 730 ILCS 5/5-4.5-100(b) (West
2012). Defendant was arrested on April 29, 2007, and sentenced on October 8, 2009, at
which point he had spent 893 days in presentence custody. The sentencing order credits
defendant with only 889 days of presentence custody.
¶ 103 Defendant did not raise the issue in his pro se postconviction petition but argues on
appeal that an amended mittimus may be issued at any time. See People v. Woodard, 175 Ill.
2d 435, 457 (1997) (such claim of error cannot be forfeited and an amended mittimus may be
issued at any time). The State does not address the issue. In the absence of any challenge
from the State, we modify the mittimus to correct the error.
¶ 104 III. CONCLUSION
¶ 105 The judgment of the circuit court of Winnebago County dismissing the pro se
postconviction petition is reversed, and the cause is remanded for further postconviction
proceedings consistent with this opinion. The mittimus is modified to reflect 893 days spent
in presentence custody.
¶ 106 Reversed and remanded; mittimus modified.
- 20 -