People v. Gaultney

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Docket No. 80172--Agenda 9--September 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. KATHY GAULTNEY,
Appellant.
Opinion filed December 19, 1996.

JUSTICE NICKELS delivered the opinion of the court:
This case arises from the dismissal of a petition brought
under the Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq.
(West 1992)). In 1990, defendant, Kathy Gaultney, was convicted of
the first degree murder of her husband and was sentenced to 45
years in prison. The conviction and sentence were affirmed by the
appellate court on direct appeal in 1992. No. 5--90--0583
(unpublished order under Supreme Court Rule 23). Defendant filed a
petition for leave to appeal to this court, which was denied.
People v. Gaultney, 148 Ill. 2d 647 (1993).
On August 6, 1993, defendant filed a pro se post-conviction
petition in the circuit court of Madison County. On August 11,
1993, the State filed a motion to dismiss the petition. The circuit
court dismissed the petition as frivolous and patently without
merit on November 1, 1993. The appellate court affirmed the
dismissal of the petition. No. 5--93--0816 (unpublished order under
Supreme Court Rule 23). We granted defendant's petition for leave
to appeal. 155 Ill. 2d R. 315. We affirm.

BACKGROUND
We will summarize the evidence presented at trial only as
needed to address the issues raised in this appeal. On September
22, 1989, defendant's husband, Keith Gaultney, was killed after
being shot twice in the head at the residence he shared with
defendant. Defendant called the police around 10 p.m. to report a
burglary at her home. When the police arrived, they found the
victim lying face down in his bed, shot twice and apparently killed
during the burglary. A drawer had been removed from a dresser in
the room and was resting partially on the victim's legs. Some of
the contents of the drawer had spilled onto the bed.
The police interviewed defendant. She told them that she left
the residence about 10 minutes before 7 p.m. She said that, when
she left, she saw the victim in the bedroom, asleep on the bed with
the television on. She returned around 10 p.m. to find the victim
dead. Defendant also told the police that the victim had probably
eaten between 4 p.m. and 6 p.m. A pathologist estimated, in an
autopsy report, that the victim had died roughly within an hour
after eating a meal, based on the contents of the victim's stomach.
The State called Rachel Lauer, defendant's daughter, to
testify at trial. Rachel was also the victim's stepdaughter. At the
time of the murder, she was in seventh grade and lived with her
mother and stepfather. Rachel testified that she was at the house
around 7 p.m. with her friend, Misty Robards. At that time, her
mother was getting ready to leave and said that she wanted to lock
the doors. Rachel's mother told her to leave and to be back at 12
a.m.
Rachel and Misty remained in the neighborhood to wait for
Rachel's mother to leave. According to Rachel, they wanted to
return to the house after defendant left to get some money from the
victim. They were going to take the money out of the victim's
wallet while he slept. Rachel and Misty watched the house for 15 to
20 minutes until defendant left. At some point, they encountered
Jodie White, another friend. After Rachel's mother left, Rachel and
Misty returned and entered the house. Jodie remained outside. While
in the house, Rachel went by the bedroom door. She did not enter
the bedroom. Rachel saw a dresser drawer and its contents scattered
around the bedroom. She saw some of her mother's jewelry lying on
the bed. The bedroom light was off but the television was on and
blaring loudly. Rachel saw the victim's feet but the rest of the
victim was "covered up." Rachel thought that her mother and the
victim had been involved in a fight and that the victim was
sleeping. In response to a question from trial counsel, Rachel
testified that she did not hear any noise emanating from the
bedroom other than the television. Rachel's testimony suggested
that the victim was already dead when her mother left the house.
Misty Robards also testified. Her testimony was similar to
Rachel's. Misty, however, testified that she and Rachel returned to
the house twice after Rachel's mother left. First, they returned
with Jodie White. Misty testified that Rachel went into the house
by herself but came back outside after a short time. Rachel could
not find the victim's wallet. Rachel and Misty returned to the
house a second time. When they returned, both went into the house
this time. Rachel and Misty entered the house through the back
door, which was unlocked. Misty testified that she and Rachel
walked past the bedroom. Her testimony regarding the condition of
the bedroom and the victim was essentially the same as Rachel's.
In the post-conviction petition, defendant claimed that she
was denied effective assistance of counsel at trial. Specifically,
defendant alleged that her trial counsel failed to ask Rachel
whether she heard the victim snoring in the bedroom on the night of
the murder. According to defendant, Rachel told trial counsel
before trial that she heard the victim snoring when she entered the
house the first time. Trial counsel did not ask her about this
snoring at trial. Defendant alleged that this testimony would have
shown that defendant had not killed the victim before she left the
house and that another individual must have killed the victim.
In support of the petition, defendant submitted five
affidavits from herself and from relatives. Rachel allegedly told
these individuals that she heard the victim snoring when she first
entered the house. Defendant also submitted an affidavit from trial
counsel, who stated that Rachel told him before trial that she had
heard the victim snoring. Defendant submitted an affidavit from
another attorney, who talked to someone over the phone claiming to
be Rachel Lauer. Defendant, however, did not submit an affidavit
from Rachel, the individual who was critical to defendant's claim.
The State filed a motion to dismiss the post-conviction
petition on August 11, 1993. The State sought dismissal on four
general grounds: (1) the petition was untimely; (2) the petition
failed to present a substantial showing of a violation of
defendant's constitutional rights; (3) defendant was merely trying
to relitigate the jury trial proceedings; and (4) the claims in the
petition were barred by res judicata or were waived. The motion was
short and contained "boilerplate" language. The State did not
discuss any of the facts of the case in the motion. The State cited
no case law in support of the motion. The State asked that the
petition be dismissed without an evidentiary hearing.
The circuit court dismissed the petition as frivolous and
patently without merit. The dismissal order stated:
"This cause comes before the court on Defendant's
Petition for Post Conviction Relief pursuant to 725 ILCS
5/122--2.1. The Court having reviewed the Petition and
affidavits attached thereto, the trial transcript, and
the opinion of the 5th District Appellate Court finds as
follows:
Defendant was convicted of the offense of Murder in
the death of her husband after a jury trial. She was
sentenced to the Illinois Department of Corrections for
a term of 45 years. On the 26th day of August, 1992,
Defendant's direct appeal was denied by the 5th District
Appellate Court. On appeal, Defendant raised six issues,
one of those being whether the circumstantial evidence
was sufficient to support a verdict of guilty beyond a
reasonable doubt.
Defendant's Petition for Post-Conviction Relief is
raising the issue of the sufficiency of the
circumstantial evidence presented at trial. Also raised
is a claim of ineffective assistance of counsel, because
counsel did not ask a question of Rachel Lauer concerning
what she heard when she went into the house on the night
of the murder. There are several affidavits attached to
the Petition, however there are no affidavits of Rachel
Lauer or Misty Robards, who were the two witnesses in the
house.
The question of sufficiency of the circumstantial
evidence is res judicata, having already been determined
by the Appellate Court. The issue of incompetency of
counsel is waived, being an issue that should have or
could have been raised on direct appeal. This is an issue
that Defendant was aware of at time of sentencing. Thus
Defendant was aware of such issue at time of her appeal.
Even if such issue is not waived, it is apparent from the
trial transcript, which includes the testimony of Rachel
Lauer and Misty Robards, and the lack of affidavits from
these individuals, that Defendant's Petition fails to
present a substantial showing of violation of Defendant's
constitutional rights.
The Court determines that the Petition is frivolous
and patently without merit, and is therefore dismissed
without an evidentiary hearing."
The appellate court affirmed the dismissal of the petition.
The court noted that the State filed a motion to dismiss before the
trial judge ruled on whether the post-conviction petition was
frivolous and patently without merit. The court stated that a trial
judge should not rely on a motion to dismiss when determining
whether a petition is frivolous. The appellate court then examined
the record and found that the trial judge had not relied on the
motion to dismiss in making his determination. Because the trial
judge did not rely on the State's motion, the court upheld the
dismissal. Justice Chapman dissented. He believed that the record
showed that the trial judge was influenced by the State's motion
and that the dismissal was improper.

ANALYSIS
Defendant argues that the State is not allowed any input when
the circuit court determines whether a post-conviction petition is
frivolous or patently without merit. Here, the State filed a motion
to dismiss before the circuit court determined that the petition
was frivolous. Defendant argues that the State's motion to dismiss
influenced the circuit court and tainted the circuit court's
determination. According to defendant, this cause should be
remanded for the appointment of counsel and further consideration
of defendant's petition.
Section 122--2.1 of the Post-Conviction Hearing Act (the Act)
provides:
"(a) Within 90 days after the filing and docketing
of each petition the court shall examine such petition
and enter an order thereon pursuant to this Section.
***
(2) If the petitioner is sentenced to imprisonment
and the court determines the petition is frivolous or is
patently without merit, it shall dismiss the petition in
a written order, specifying the findings of fact and
conclusions of law it made in reaching its decision. Such
order of dismissal is a final judgment and shall be
served upon the petitioner by certified mail within 10
days of its entry.
(b) If the petition is not dismissed pursuant to
this Section, the court shall order the petition to be
docketed for further consideration in accordance with
Sections 122--4 through 122--6.
(c) In considering a petition pursuant to this
Section, the court may examine the court file of the
proceeding in which the petitioner was convicted, any
action taken by an appellate court in such proceeding and
any transcripts of such proceeding." (Emphasis added.)
725 ILCS 5/122--2.1 (West 1992).
If the petition is not dismissed pursuant to section 122--2.1,
section 122--4 provides for the appointment of counsel to indigent
defendants. 725 ILCS 5/122--4 (West 1992). Section 122--5 of the
Act provides:
"Within 30 days after the making of an order
pursuant to subsection (b) of Section 122--2.1, or within
such further time as the court may set, the State shall
answer or move to dismiss. In the event that a motion to
dismiss is filed and denied, the State must file an
answer within 20 days after such denial. No other or
further pleadings shall be filed except as the court may
order on its own motion or on that of either party."
(Emphasis added.) 725 ILCS 5/122--5 (West 1992).
Section 122--6 allows the circuit court to hold an evidentiary
hearing. 725 ILCS 5/122--6 (West 1992).
Pursuant to the Act, a post-conviction proceeding that does
not involve the death penalty has three distinct stages. In the
first stage, the defendant files a petition and the circuit court
determines whether it is frivolous or patently without merit. At
this stage, the Act does not permit any further pleadings from the
defendant or any motions or responsive pleadings from the State.
Instead, the circuit court considers the petition independently,
without any input from either side. To survive dismissal at this
stage, a petition need only present the gist of a constitutional
claim. People v. Porter, 122 Ill. 2d 64, 74 (1988). This is a low
threshold and a defendant need only present a limited amount of
detail in the petition. At this stage, a defendant need not make
legal arguments or cite to legal authority. Porter, 122 Ill. 2d at
74. The Act provides that the petition must be supported by
"affidavits, records, or other evidence supporting its allegations"
or the petition "shall state why the same are not attached." 725
ILCS 5/122--2 (West 1992). If the circuit court does not dismiss
the petition pursuant to section 122--2.1, it is then docketed for
further consideration.
The proceeding then advances to the second stage. At the
second stage, the circuit court appoints counsel to represent an
indigent defendant. 725 ILCS 5/122--4 (West 1992). Counsel may file
an amended post-conviction petition. Also, at this second stage,
the Act expressly provides that the State may file a motion to
dismiss or answer to the petition. 725 ILCS 5/122--5 (West 1992).
Section 122--5 specifically contemplates that the State will file
a motion to dismiss or answer after the circuit court has evaluated
the petition to determine if it is frivolous. If the circuit court
does not dismiss or deny the petition, the proceeding advances to
the third stage. At this final stage, the circuit court conducts an
evidentiary hearing. 725 ILCS 5/122--6 (West 1992). If the circuit
court dismisses the petition or denies post-conviction relief at
any stage, the defendant may appeal.
Several appellate decisions have considered the situation
where the State files a motion before the circuit court has decided
whether the petition is frivolous. See, e.g., People v. Merritte,
225 Ill. App. 3d 986 (1992); People v. Mitchell, 218 Ill. App. 3d
401 (1991). These courts have consistently found that the filing of
a motion at this stage is premature and improper under the Act.
See, e.g., People v. Oury, 259 Ill. App. 3d 663, 668 (1994). The
sections of the Act, when considered collectively, do not authorize
the filing of a motion to dismiss at the first stage.
The mere early filing of a motion or responsive pleading by
the State, however, does not per se contaminate the circuit court's
determination pursuant to section 122--2.1. See, e.g., Mitchell,
218 Ill. App. 3d at 402-03. The premature filing of a motion to
dismiss does not prevent the circuit court from independently
evaluating whether a post-conviction petition is frivolous or
patently without merit, as required by the Act. Rather, reversal is
required where the record shows that the circuit court sought or
relied on input from the State when determining whether the
petition is frivolous. Compare People v. Barker, 258 Ill. App. 3d
323 (1994) (reversal required where the trial judge requested
argument from both parties); Merritte, 225 Ill. App. 3d 986
(reversal required where the State orally argued its motion to
dismiss at length to the trial judge and where the judge stated
that dismissal was based, in part, on the reasons given by the
State at oral argument); People v. Clark, 239 Ill. App. 3d 546
(1992) (reversal required where the State presented oral argument,
the State used case law to support its oral argument, and the trial
judge said that he had relied on the State's arguments); People v.
Rutkowski, 225 Ill. App. 3d 1065 (1992) (reversal required where
the trial judge heard argument from the State on its oral motion to
strike); People v. Novak, 200 Ill. App. 3d 189 (1990) (reversal
required where the trial judge conducted a hearing on the motion to
dismiss and expressly indicated that he was granting the State's
motion); People v. Magdaleno, 188 Ill. App. 3d 384 (1989) (reversal
required where the trial judge addressed the merits of the State's
motion to strike); with People v. Woods, 239 Ill. App. 3d 559
(1992) (no reversal where the motion was short and cited only one
case, the trial judge did not hear any argument on the motion, and
the order showed an independent analysis); Mitchell, 218 Ill. App.
3d 401 (no reversal where the motion was terse, the trial judge did
not hear any argument from the State, and the dismissal order
showed a detailed analysis).
We agree with the approach of these appellate decisions.
Section 122--2.1 of the Act authorizes the trial judge to make an
initial independent evaluation of a post-conviction petition. 725
ILCS 5/122--2.1 (West 1992). We ordinarily presume that the trial
judge knows and follows the law unless the record indicates
otherwise. See People v. Terrell, 132 Ill. 2d 178, 219 (1989).
Where the record gives no indication that the trial judge sought
input from the State or relied on the motion to dismiss, we presume
that the judge acted properly.
In this case, defendant acknowledges that reversal is required
only if the record shows that the circuit court relied on or was
influenced by the motion to dismiss. Defendant argues, however,
that the order shows that the circuit court did rely on the motion
to dismiss. Defendant emphasizes four purported similarities
between the motion to dismiss and the dismissal order to show this
reliance.
First, defendant argues that the circuit court erroneously
relied on the principle of res judicata, which was raised in the
State's motion, to bar any attack on the sufficiency of the
evidence presented at trial. Defendant contends that she did not
challenge the sufficiency of the evidence in her post-conviction
petition. Second, defendant argues that the circuit court
erroneously relied on waiver in connection with her ineffective-
assistance claim. According to defendant, waiver is inappropriate
here because the same counsel represented defendant both at trial
and on appeal. Defendant contends that the trial judge would not
have mentioned waiver if that argument had not been contained in
the motion to dismiss. Third, defendant argues that the circuit
court dismissed the petition "without an evidentiary hearing,"
which is what the State sought in its motion. Defendant argues that
the circuit court should not consider whether she is entitled to a
hearing at this stage of the proceeding. Fourth, defendant argues
that the circuit court found that the petition failed to "present
a substantial showing of violation of Defendant's constitutional
rights," which is similar to language used by the State in its
motion. Again, defendant argues that this language is used when
considering whether a defendant is entitled to an evidentiary
hearing and that this language would not have been used absent the
motion.
The purported similarities identified by defendant are too
tenuous to show reliance on the motion to dismiss. First, with
respect to res judicata, an examination of the post-conviction
petition shows that the allegations in the petition do generally
attack the sufficiency of the circumstantial evidence presented at
trial. Second, with respect to waiver, defendant may be correct
that the circuit court overlooked counsel's representation at trial
and on appeal. Waiver aside, however, the circuit court
specifically found that the ineffective-assistance claim was
frivolous because defendant failed to submit affidavits from either
Rachel Lauer or Misty Robards, which was not suggested by the
State. With respect to defendant's third and fourth arguments, some
of the language in the order is similar to the language in the
motion, but, as the appellate court noted, the similar language
involves general terminology that is common in post-conviction
proceedings. The circuit court denied the petition "without an
evidentiary hearing" because defendant requested a hearing in her
petition.
Most significantly, the trial judge specifically identified
the materials on which he relied in making his determination. He
stated that he had reviewed the post-conviction petition, the
affidavits, the trial transcript, and the decision of the appellate
court on direct appeal. No mention was made of the State's motion
to dismiss. No hearing was held. The analysis in the dismissal
order recited the facts of the case and was more detailed than the
reasons presented in the motion to dismiss. In the order, the trial
judge specifically found that the petition was "frivolous and
patently without merit," which is the proper statutory standard for
dismissal. Accordingly, we reject defendant's argument.
Defendant also argues that the circuit court erred in
substantively finding the petition frivolous or patently without
merit. Defendant argues that the circuit court erred in dismissing
the petition based on defendant's failure to include an affidavit
from either Rachel Lauer or Misty Robards. Defendant concedes that
she failed to raise this argument in the appellate court and in the
petition for leave to appeal to this court. We find the issue
waived. See People v. Schott, 145 Ill. 2d 188, 201 (1991); Federal
Deposit Insurance Corp. v. O'Malley, 163 Ill. 2d 130, 154 (1994).
Finally, defendant argues that the prosecutor made certain
improper comments during closing argument. Defendant argues that
trial counsel was ineffective in failing to object to them and that
the comments violated due process. Essentially, the prosecutor told
the jury that it had to accept certain statements of witnesses as
true because they were unrebutted. This argument was not raised in
the post-conviction petition. Section 122--3 of the Act provides
that "[a]ny claim of substantial denial of constitutional rights
not raised in the original or an amended petition is waived." 725
ILCS 5/122--3 (West 1992). In addition, this issue also was not
raised on appeal to the appellate court or in the petition for
leave to appeal to this court. Again, we find the issue waived.
For the foregoing reasons, the judgment of the appellate court
is affirmed.

Affirmed.

JUSTICE FREEMAN, dissenting:
The record here clearly indicates that the trial judge was
influenced by and improperly relied on the State's premature motion
in deciding to dismiss defendant's pro se post-conviction petition.
For this reason, I cannot join the majority's affirmance. I agree
with dissenting Justice Chapman of the appellate court. See No. 5--
93--0816 (unpublished order under Supreme Court Rule 23). The trial
judge here was influenced by and relied on the State's motion and,
thus, dismissal of defendant's pro se petition was improper.
On August 6, 1993, defendant filed her pro se post-conviction
petition, claiming ineffective assistance of trial counsel. The
petition was supported by seven affidavits from herself, her
relatives, and two attorneys, attesting to the fact that a witness
had made exculpatory statements. To be sufficient at this initial
stage of the post-conviction process, defendant's pro se petition
only needed to clear a low threshold by presenting the gist of a
constitutional claim. People v. Porter, 122 Ill. 2d 64, 74 (1988).
In ruling on the petition at this stage, the trial court only
needed to determine that the petition was not frivolous or patently
without merit. See 725 ILCS 5/122--2.1 (West 1992). No evidentiary
hearing was authorized at this stage. See 725 ILCS 5/122--6 (West
1992).
Five days later, the State prematurely filed a motion to
dismiss, utilizing boilerplate language and terminology suited for
requesting dismissal at a later stage in the post-conviction
process. Because the defendant's right to counsel had not yet
attached at this stage of the process, the State was not permitted
to be actively represented. See People v. Rutkowski, 225 Ill. App.
3d 1065 (1992); People v. Merritte, 225 Ill. App. 3d 986 (1992).
The State's motion claimed that the petition failed to meet a
higher standard than that required at that particular stage of the
process. Thus, the motion stated "defendant's petition fails to
present a substantial showing of a violation of the petitioner's
constitutional rights." The motion also requested that the petition
be dismissed "without an evidentiary hearing." Presumably, the
trial judge, knowing the law, would not consider the motion.
On November 1, 1993, the trial court issued an order
dismissing the petition, concluding that it was frivolous and
patently without merit. Interestingly, the order, like the State's
motion, referred to a standard of sufficiency appropriate to a
later stage of post-conviction process. Interestingly, also, the
order referred to this standard by means of a statement nearly
identical to the State's statement of the standard in its motion.
Thus, the order stated "defendant's petition fails to present a
substantial showing of violation of defendant's constitutional
rights." The order's statement of the standard was also more
similar to the motion's statement of the standard than to the
statutory standard, itself. See 725 ILCS 5/122--1 (West 1992)
(referring to "a substantial denial of his rights under the
Constitution"). The majority explains that this similarity involves
merely "general terminology that is common in post-conviction
proceedings." Slip op. at 10. I strenuously disagree. The
similarity involves practically a word-for-word statement of an
untimely procedural standard in terms more closely parallel to
those in the State's motion than to those in the statute.
In addition to this similarity, the order also inappropriately
stated, just like the State's motion inappropriately requested,
that dismissal of the petition was "without an evidentiary
hearing." The majority explains the curious appearance of this
inappropriate language within the order as no more than the
response to the petitioner's request for a hearing. Slip op. at 10.
The problem, however, is that the court need not have responded to
the request. Even if the court had not dismissed the petition,
petitioner's request for a hearing could not have been granted at
this stage in the proceedings (see 725 ILCS 5/122--5, 122--6 (West
1992)), so the court's statement was surplusage.
To accept the majority's explanations would mean that it was
simply coincidental that the State's motion was similar to the
trial judge's order. I find that hard to believe. These two
language and untimely procedural reference similarities clearly
suggest to me that the trial judge was influenced by the State's
motion. That being the case, I am not persuaded that the other two
similarities noted by petitioner are tenuous as the majority
believes. The remaining similarities, rather, strengthen the
petitioner's case.
The State's motion stated that "the Post-Conviction Hearing
Act is not designed to relitigate the defendant's guilt or
innocence established in the jury trial proceedings" and that "the
defendant's petition is barred by the doctrine of res judicata in
that all claims which were raised or which could have been raised
on appeal are waived and cannot be raised in a post-conviction
proceeding." The order stated that "[t]he question of sufficiency
of the circumstantial evidence is res judicata, having already been
determined by the Appellate Court. The issue of incompetency of
counsel is waived, being an issue that should have or could have
been raised on direct appeal." The finding that the issue of
incompetency of counsel was waived was legally incorrect, however,
because a waiver exception applied in this case.
The majority explains that the order drew its statement
regarding evidentiary sufficiency being res judicata, not from the
State's motion, but from the petition's allegations, in general.
Slip op. at 9. The petition, however, specifically raised only the
issue of the ineffectiveness of trial counsel. The majority does
not explain at all the similarity between the order's incorrect
legal finding of waiver and the State's motion urging waiver. The
majority simply sidesteps the matter, reasoning that the trial
court's frivolous finding stated a basis other than that suggested
by the State's motion. Slip op. at 10. To say that the order had an
indication of some independent basis, however, does not explain the
similarity.
I believe the State prematurely filed a somewhat generic
motion to dismiss, which was likely designed to attack a post-
conviction petition which had survived this first stage of post-
conviction proceedings. The motion's influence is shown by the
trial court's use of the same language, referring to a
determination more properly made at a later stage in post-
conviction proceedings; and of nearly verbatim language, referring
to a statutory standard more properly applied at a later stage. The
similar language, the similar untimely procedural references, and
the similarly inappropriate reliance on waiver convince me that the
trial judge was influenced by and relied on the State's motion.
Accordingly, dismissal of defendant's pro se petition was improper.