Opinion
4-23-0563
05-16-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORNELIUS LEE JONES JR., Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Winnebago County No. 12CF1142 Honorable Joseph G. McGraw, Judge Presiding.
VANCIL JUSTICE delivered the judgment of the court. Justices Steigmann and DeArmond concurred in the judgment.
ORDER
VANCIL JUSTICE
¶ 1 Held: The trial court did not err when it summarily dismissed a postconviction petition at the first stage of proceedings where the claim raised in the petition was barred by the doctrine of res judicata.
¶ 2 Defendant, Cornelius Lee Jones Jr., appeals the summary dismissal of his pro se postconviction petition by the trial court. He argues that his petition for postconviction relief stated the gist of a constitutional claim and that both trial and direct appeal counsel were ineffective. He further contends that his claims are not barred by the doctrines of res judicata, waiver, or forfeiture. We affirm.
¶ 3 I. BACKGROUND
¶ 4 In May 2012, defendant was indicted on three counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1)(West 2006)) that occurred between 2006 and 2009 with S.S., the young daughter of his girlfriend at the time. At trial, the main dispute centered on the significance of the medical finding that S.S.'s hymen was intact in a case that alleged only penis to vagina penetration. Both the State and the defense offered testimony from medical professionals on the issue. Defendant did not testify in his own defense. He was found guilty at a jury trial in September 2014.
¶ 5 On direct appeal, the Second District affirmed, determining, inter alia, that defendant's trial counsel was not ineffective for failing to tell defendant that he could revoke the waiver of his right to testify at trial. People v. Jones, 2015 IL App (2d) 140892-U, ¶ 49. The court noted that defendant had been admonished by the trial judge of his right to testify and had told the court "unequivocally, that he understood this right." Id. Furthermore, although defendant asserted that his attorney failed to provide him with advice concerning the" 'full scope'" of his right to testify, the court held that the trial judge's on-the-record admonition was sufficient to inform him of his right to testify and therefore make his waiver of that right voluntary, contrary to his argument on appeal. Id. ¶¶ 48-49.
¶ 6 Defendant subsequently filed a petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1, et seq. (West 2022)), alleging that he was denied the constitutional right to testify in his own defense based on conduct by his trial attorney that was "not on the record." He alleged that trial counsel did not discuss his potential testimony pretrial or inform him that, without his testimony, the jury would hear only" 'direct evidence from *** the accuser.'" He also contended that he wanted to testify, his testimony would have denied any improper contact with the accuser, he could have pointed out that he did not live with the accuser on many of the dates that the contact allegedly occurred, and his testimony would have made a difference in the jury verdict. Finally, the petition alleged that his appellate counsel was ineffective for failing to raise these issues on direct appeal and, therefore, they are not procedurally defaulted. The trial court summarily dismissed the petition for failure to state the gist of a constitutional claim.
¶ 7 This appeal followed.
¶ 8 II. ANALYSIS
¶ 9 A. Res Judicata as to the Issue of Ineffective Trial Counsel
¶ 10 Because we find them dispositive, we first address the issues of res judicata and forfeiture. Defendant argues that his claim of ineffective assistance of trial counsel is not barred from our consideration because it relies on facts outside of the direct appeal record, or, alternatively, because direct appeal counsel was ineffective for not raising this issue on his behalf on direct appeal.
¶ 11 The State, however, argues that because the reviewing court addressed the issue of trial counsel's effectiveness on appeal, it is now barred by the doctrine of res judicata. We agree with the State.
¶ 12 The Act provides a mechanism by which criminal defendants may challenge the constitutionality of the proceedings that resulted in their conviction. People v. Tate, 2012 IL 112214, ¶ 8. Analyses of postconviction petitions follow a three-stage format where, at the first stage, a petition may be summarily dismissed for failure to state the gist of a constitutional claim. People v. Edwards, 197 Ill.2d 239, 244 (2001). Dismissal is warranted if a court determines that a petition is" 'frivolous'" or" 'patently without merit.'" People v. Boclair, 202 Ill.2d 89, 100 (2002). Notably, a postconviction petition is not a direct appeal from a judgment; it is instead a collateral attack on a prior proceeding. Edwards, 197 Ill.2d at 270 (Garman, J., dissenting). As such, issues raised on direct appeal are barred from consideration in a postconviction petition by the doctrine of res judicata, and those issues which could have been raised in a direct appeal, but were not, are similarly considered forfeited. People v. Kimble, 348 Ill.App.3d 1031, 1034 (2004). Exceptions exist where (1) fundamental fairness so requires, (2) the forfeiture stems from the ineffective assistance of appellate counsel, or (3) facts relating to the claim do not appear on the face of the original appellate record. People v. Blair, 215 Ill.2d 427, 450-51 (2005). However, this court has emphasized that a defendant cannot avoid the bar of res judicata by simply rephrasing issues that have already been raised, or adding additional allegations that are encompassed by previously litigated issues. Kimble, 348 Ill.App.3d at 1034 . Where a defendant is precluded from obtaining relief due to res judicata and forfeiture, a petition is necessarily "frivolous" or "patently without merit" and may be summarily dismissed. Blair, 215 Ill.2d at 436. A trial court's dismissal of a postconviction petition at first-stage proceedings is reviewed de novo. People v. Hodges, 234 Ill.2d 1, 9 (2009).
¶ 13 In the case before us, defendant argues that his petition's claim of ineffective assistance of trial counsel is "substantially different" than the claim of ineffective assistance of trial counsel that he raised on direct appeal. He alleges that, on appeal, appellate counsel argued only that trial counsel was ineffective for failing to tell defendant that he could revoke the waiver of his right to testify at trial. His petition, in contrast, alleges that he was denied the right to testify in his own defense based on "off-the-record" communications between himself and his attorney. Specifically, his petition alleges that (1) trial counsel never discussed defendant's potential testimony before trial,(2) trial counsel never pointed out that without defendant's testimony the jury would only hear" 'direct evidence *** from the accuser'," and (3) defendant wanted to testify, his testimony would have denied any improper contact with the accuser, he could have pointed out that he was not living with the accuser on many of the dates that the contact allegedly occurred, and his testimony "would have made a major difference in the jury verdict."
¶ 14 We fail to see how the allegations that defendant raises in his postconviction petition are "substantially different" than those previously decided on direct appeal. The issue of ineffective assistance of trial counsel has already been addressed; defendant now suggests a slight variation to a previously raised claim in order to avoid the bar of res judicata. As stated, previously litigated issues cannot be reopened through the subsequent addition of more allegations. Kimble, 348 Ill.App.3d at 1034. "To hold otherwise would encourage defendants to not state all of the allegations in support of an argument so they could avoid summary dismissal of their postconviction petition based on res judicata." Id.
¶ 15 Yet defendant argues that these newer allegations could not have been raised on direct appeal because they relied on facts outside of the direct appeal record. We are not convinced. On direct appeal, defendant argued that he" 'would have [testified]'" at trial if his attorney had provided him with advice concerning the" 'full scope'" of his right to testify, i.e., that he could revoke the waiver of his right to testify after becoming dissatisfied with the testimony of others called in his defense. Jones, 2015 IL App (2d) 140892-U, ¶ 48. Likewise, the claims contained in his postconviction petition are also based on defendant's alleged lack of awareness of the" 'full scope'" of his right to testify at trial, in this case, on the basis of trial counsel's alleged failure to discuss his testimony before trial or inform him of the effect his lack of testimony would have. It is difficult to understand how certain private conversations defendant had with trial counsel regarding his right to testify at trial were "off-the-record" and therefore unable to be brought up on appeal, while other private conversations between defendant and trial counsel, concerning the same issue, were "on-the-record" and could form the basis for a claim on appeal. Because defendant's postconviction claim of ineffective trial counsel is so similar as to rely on largely the same set of facts, the appropriate time for defendant to raise all his allegations of ineffective assistance of trial counsel was on direct appeal, when he first raised a claim regarding the issue. See Kimble, 348 Ill.App.3d 1034 (holding the defendant's postconviction petition was correctly dismissed at the first stage, where the defendant already had the opportunity to fully litigate the raised issue on appeal). For this reason, we find that the doctrine of res judicata prevents defendant from relitigating his claim of ineffective assistance at trial.
¶ 16 B. Ineffective Assistance of Appellate Counsel
¶ 17 Defendant next argues that, should this court find that his postconviction claim is barred by res judicata, it is nevertheless not forfeited because defendant's petition "expressly alleges that his direct appeal counsel was ineffective for not raising it." Although it is true that an exception to forfeiture exists where the forfeiture occurs as a result of appellate counsel's failure to raise a claim, we do not find it applicable to the case before us. As discussed previously, defendant's appellate counsel did not fail to raise defendant's claim of ineffective trial counsel. Rather, the claim was raised on appeal and rejected by the court. Defendant cannot therefore rely on an exception to forfeiture where his claim was not forfeited.
¶ 18 We find this court's decision in Kimble instructive. In Kimble, the defendant, after pleading guilty to aggravated battery of a child, filed a motion to withdraw his guilty plea, stating that his trial counsel was ineffective. Id. at 1032. When that motion and a subsequent appeal proved unsuccessful, the defendant filed a postconviction petition, again alleging ineffective assistance of trial counsel and adding an argument of ineffective assistance of appellate counsel. Id. at 1033. This court, after reviewing the law governing res judicata, forfeiture, and exceptions to forfeiture in the case of a claim of ineffective assistance of appellate counsel, held that the trial court was correct in summarily dismissing the defendant's petition. Id. at 1034. In particular, it based its decision on the doctrine of res judicata, noting that the defendant had already raised the issue of ineffective assistance of counsel on appeal. Id. There was no discussion of the defendant's claim of ineffective assistance of appellate counsel leading to an exception of the barred claim. See id.
¶ 19 Here, as in Kimble, defendant was unsuccessful in alleging ineffective assistance of trial counsel on direct appeal and now seeks to raise the same issue in a postconviction petition, coupling it with a new claim of ineffective appellate counsel to utilize the established forfeiture exception. However, as stated previously, what distinguishes both Kimble and the case before us from cases in which other courts have relied upon the forfeiture exception is that, in Kimble and the instant case, the issue of ineffective trial counsel was not forfeited on appeal; it was instead unsuccessfully argued. Id. at 1033. In short, because defendant already raised the issue of ineffective trial counsel on appeal, and the claim therefore is not forfeited but is instead barred by res judicata, we find the exception to forfeiture on which defendant attempts to rely to be inapplicable to the situation at hand.
¶ 20 Because defendant's claim of ineffective trial assistance is barred by the doctrine of res judicata, we need not address whether defendant's postconviction petition stated the gist of a constitutional claim.
¶ 21 III. CONCLUSION
¶ 22 For the reasons stated, we affirm the trial court's judgment.
¶ 23 Affirmed.