People v. Allen

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THIRD DIVISION November 28, 2007 No. 1-04-1090 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT ALLEN, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County. Nos. 90 CR 11981 90 CR 11984 90 CR 11987 Honorable James B. Linn, Judge Presiding. JUSTICE THEIS delivered the opinion of the court: Defendant Robert Allen appeals from the dismissal of his petition for relief under section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2002)). On appeal, defendant contends that: (1) the trial court treated his petition as a post-conviction petition and improperly failed to address all of its allegations; (2) alternatively, if the court considered his pleading as a section 2-1401 petition, the court lacked the statutory authority to summarily dismiss it; and (3) the summary dismissal of his section 2-1401 petition was not harmless where it presented a meritorious issue. For the following reasons, we affirm. The following facts are relevant to the disposition of this appeal. In trial court case number 90 CR 11984, defendant was convicted by a jury of attempted first degree murder, armed robbery, and armed violence for the April 15, 1990 armed robbery of a Trak Auto store (the Trak Auto robbery). Defendant was sentenced to concurrent terms of 55 years imprisonment on each 1-04-1090 conviction. His codefendant, Tony Anderson, was found guilty of all three offenses following a bench trial. During defendant s trial, the evidence revealed that on April 18, 1990, defendant was a passenger in a stolen car driven by Anderson when it was stopped by police. While an officer conducted a protective search of defendant, he saw a black jacket lying across defendant s feet. The officer took the jacket and felt a .25-caliber automatic pistol in the pocket. Defendant was then placed under arrest. A ballistics examination later revealed that that gun matched the bullet retrieved from the scene of the Trak Auto robbery. Additionally at trial, two eyewitnesses testified that they had positively identified defendant in two separate lineups as the gunman. Another eyewitness, who was shot in the neck, tentatively identified defendant as the shooter. Three witnesses had positively identified Anderson as the other offender. On direct appeal, defendant argued that the trial court erred in denying his motion to quash arrest and suppress evidence because the search violated his fourth amendment rights, his alibi witness was improperly impeached, the prosecutor s remarks in closing argument denied defendant a fair trial, and the trial court erred in sentencing him to 55 years imprisonment. This court rejected these arguments and affirmed his convictions and sentences. People v. Allen, No. 1-91-2071 (July 12, 1994) (unpublished order under Supreme Court Rule 23). This court further found that the jury had sufficient evidence from which to conclude that defendant was the gunman during the robbery of the Trak Auto store. Allen, slip op. at 12. The supreme court denied his petition for leave to appeal. People v. Allen, 157 Ill. 2d 506, 642 N.E.2d 1286 (1994). Following a jury trial in case number 90 CR 11987, defendant was convicted of two counts of armed robbery in the April 8, 1990 robbery of a drug store (the drug store robbery). 2 1-04-1090 Defendant was sentenced to a term of 40 years, to be served consecutively to his 55-year sentence from the Trak Auto robbery. At the motion to suppress, evidence was again presented that defendant and Anderson had been stopped while driving a stolen vehicle and that defendant was arrested when police discovered a revolver in a jacket at defendant s feet. Defendant denied ownership of the jacket and gun and claimed that he was unaware of the jacket s presence in the backseat until it was discovered by the officer. The court denied defendant s motion to suppress. At trial, an eyewitness testified that he had identified defendant and Anderson in a lineup as the perpetrators of the drug store robbery. The witness testified that Anderson stepped behind the counter and pointed a gun at him while defendant stood at the door. Anderson removed money from the register while defendant handcuffed the witness. Defendant was also armed with a handgun. Defendant then handcuffed and locked several employees in a storage room. The witness identified the gun recovered from defendant s feet as resembling the gun used in this robbery. A customer in the drug store also identified defendant and Anderson as the robbers. In that direct appeal, defendant argued that he was arrested in violation of his fourth amendment rights where the police conducted a search for weapons without probable cause during the traffic stop, the trial court abused its discretion in denying him a continuance to locate an alibi witness, defendant s rights were violated when the jury read police reports not in evidence, even though defendant refused the trial court s offer of a mistrial, and consecutive sentences were imposed without the necessary statutory finding that defendant represented a danger to the public. This court rejected defendant s contentions and affirmed. People v. Allen, 268 Ill. App. 3d 279, 645 N.E.2d 263 (1994). The supreme court denied defendant s petition for 3 1-04-1090 leave to appeal. People v. Allen, 161 Ill. 2d 530, 649 N.E.2d 419 (1995). In case number 90 CR 11981, defendant was convicted by a jury of armed robbery in the April 17, 1990 armed robbery of a jewelry store (the jewelry store robbery). He was sentenced to 30 years imprisonment to be served consecutively to his earlier sentences for the Trak Auto and drug store robberies. At trial, the evidence established that defendant and two unidentified men entered a jewelry store and one of the men pointed a gun at the owner s head. Defendant and the third man also pulled guns and held them to the owner s back while they removed his wallet. When defendant discovered an employee on the telephone in the office, defendant pointed a gun at that employee s head and told him to hang up the phone. The men handcuffed the owner and two employees and locked them in the back room while they stole jewelry and cash. Defendant returned to the back room, pointed his gun at the owner and threatened to kill him if he did not reveal the location of the money. Evidence was again presented of defendant s arrest in the stolen car and of the gun found in the jacket at defendant s feet. An employee identified this gun as the gun defendant used in this robbery. A search of that stolen car also revealed a cosmetic case filled with jewelry. All three jewelry store employees identified defendant as one of the robbers from lineups conducted two days after the robbery. In that direct appeal, defendant argued that his motion to quash arrest and suppress the gun was improperly denied, the consecutive sentences imposed were improper because the record did not adequately reflect a belief by the court that consecutive sentences are necessary for the protection of the public, and his sentence must be reduced to 25 years because the aggregate of the consecutive sentences imposed exceeded the sum of the maximum extended terms authorized 4 1-04-1090 for the two most serious felonies. This court rejected defendant s challenges to his conviction and affirmed the imposition of consecutive sentences, but reduced his sentence to 25 years imprisonment. People v. Allen, 268 Ill. App. 3d 947, 645 N.E.2d 270 (1994). The supreme court denied defendant s petition for leave to appeal. People v. Allen, 161 Ill. 2d 530, 649 N.E.2d 419 (1995). In 1995, defendant filed a pro se post-conviction petition attacking only the Trak Auto robbery case, alleging inter alia, that the jacket containing the gun was never proven to belong to defendant. The trial court dismissed this petition as frivolous and without merit. On direct appeal, defendant s counsel filed a motion to withdraw from the case, stating that there were no arguable bases for collateral relief. This court granted the motion and affirmed the summary dismissal of defendant s post-conviction petition. People v. Allen, No. 1-95-2276 (February 27, 1996) (unpublished order under Supreme Court Rule 23). On December 17, 2003, defendant filed a pro se petition entitled Petition for Relief from Judgement pursuant to section 2-1401 of the Code in all three of his criminal cases. The petition alleged that (1) his consecutive, extended-term sentences violated Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); (2) the denial of his motion to quash his arrest and suppress the gun was erroneous because there was no basis to believe that he was armed and dangerous; and (3) he was entitled to DNA and forensic testing which was unavailable at the time of his trials in light of newly discovered evidence that codefendant Anderson, in a statement to police, implicated a person other than defendant in the Trak Auto robbery. In January 2004, the trial court summarily denied defendant's petition. This court then 5 1-04-1090 accepted defendant s late notice of appeal. Defendant first argues that the trial court treated his section 2-1401 petition as a postconviction petition and improperly failed to address all of its allegations. However, the record contains no evidence that the trial court considered his petition as a post-conviction petition. Rather, the trial court s statement that defendant s pro se motion for what he calls relief of judgment is denied demonstrates that it treated defendant s pleading as a section 2-1401 petition. Accordingly, we reject defendant s argument and find that the trial court properly considered defendant s pleading as a section 2-1401 petition. Defendant next contends that the trial court committed reversible error by summarily dismissing his section 2-1401 petition. Specifically, defendant argues that summary dismissal is not authorized under section 2-1401, and that even if summary dismissal is allowed, the dismissal of his petition was not harmless where it presented a meritorious issue. Until recently, a split existed among the various districts of the appellate court over whether a section 2-1401 petition could be summarily dismissed. The Fourth District held that the trial court has the inherent authority to summarily dismiss a section 2-1401 petition if it finds that the petition is frivolous and without merit. See, e.g., People v. Ryburn, 362 Ill. App. 3d 870, 877, 841 N.E.2d 1013, 1018 (4th Dist. 2005); People v. Bramlett, 347 Ill. App. 3d 468, 472-73, 806 N.E.2d 1251, 1254-55 (4th Dist. 2004). The Second and Third Districts held that a circuit court commits reversible error by dismissing a section 2-1401 petition without giving the defendant notice and an opportunity to respond to the circuit court s action and that the appellate court cannot look beyond this error to assess the merits of the petition. See, e.g., People v. Coleman, 6 1-04-1090 358 Ill. App. 3d 1063, 1066-71, 835 N.E.2d 387, 390-94 (3d Dist. 2005); People v. Mescall, 347 Ill. App. 3d 995, 1000-01, 808 N.E.2d 1101, 1106-07 (2d Dist. 2004); People v. Pearson, 345 Ill. App. 3d 191, 193-95, 802 N.E.2d 386, 388-89 (2d Dist. 2003), aff d on other grounds, 216 Ill. 2d 58, 833 N.E.2d 827 (2005); People v. Gaines, 335 Ill. App. 3d 292, 295-97, 780 N.E.2d 822, 824-26 (2d Dist. 2002). The First District held that although the circuit court does not have the authority to summarily dismiss section 2-1401 petitions, harmless error analysis should apply to such dismissals. People v. Dyches, 355 Ill. App. 3d 225, 227-29, 824 N.E.2d 636, 638-39 (2005); People v. Anderson, 352 Ill. App. 3d 934, 939-48, 817 N.E.2d 1000, 1005-11 (2004). See also People v. Schrader, 353 Ill. App. 3d 684, 686-88, 820 N.E.2d 489, 493-94 (2004). However, in People v. Vincent, 226 Ill. 2d 1, 871 N.E.2d 17 (2007), our supreme court resolved this issue. Therein, the supreme court explained that because an action brought under section 2-1401 is a civil proceeding, it is subject to the usual rules of civil practice. Vincent, 226 Ill. 2d at 7, 871 N.E.2d at 22. According to those rules, if no responsive pleading is filed, the trial court must take all well-pleaded facts as true. Vincent, 226 Ill. 2d at 9-10, 871 N.E.2d at 24. This renders the petition ripe for adjudication as a matter of law. Vincent, 226 Ill. 2d at 10, 871 N.E.2d at 24. Thus, the trial court may sua sponte enter judgment on the pleadings dismissing the petition with prejudice even if no responsive pleading has been filed. Vincent, 226 Ill. 2d at 9-10, 871 N.E.2d at 23-24. However, because of the civil nature of section 2-1401 petitions, it is improper to refer to this practice as summary dismissal. Vincent, 226 Ill. 2d at 10-11, 871 N.E.2d at 24-25. Further, the defendant need not receive notice prior to the court s ruling. Vincent, 226 Ill. 2d at 13, 871 N.E.2d at 26. Finally, the supreme court explained that when a 7 1-04-1090 trial court sua sponte dismisses a section 2-1401 petition as a manner of law, this court will apply the de novo standard of review on an appeal from that dismissal. Vincent, 226 Ill. 2d at 14-15, 871 N.E.2d at 26. With these principles in mind, we must now determine whether defendant s petition was properly denied as a matter of law. On appeal, defendant argues that his petition raised a single issue of merit. This issue is contained within a section of his 32-page petition where defendant attacks the police officers search of his jacket during the traffic stop and alleges that his search and the seizure of the gun was unconstitutional. His two-sentence claim states in pertinent part: The petitioner has a right under Due Process of the United States Constitution to have a forensic testing to prove his innocense [sic] and that the D.N.A. [sic] and forensic testing was unavailable at the time of trial and rendered the trial fundamentally unfair which violated the petitioner s fourteenth Amendment rights, and Due process of the U.S. Constitution. [Citations.] Under newly discovered evidence, petitioner request[s] the Court to consider the fact that Anderson, co-defendant of petitioner [pled] guilty to first degree murder under indictment number CR 90 11979 which involved that particular weapon which was found in the car that Anderson had total possession of; and gave a statement to the police officers alleging and implicating an offender other than the petitioner in the [T]rak Auto occurrence. 8 1-04-1090 There is no affidavit from Anderson attached to the petition and no other documents supporting defendant s claim that Anderson made such a statement to police. The trial court construed these sentences as an argument that defendant wanted DNA testing on the gun and jacket. Defense counsel on appeal acknowledges that with these sentences, defendant is arguing that he was entitled to forensic testing, particularly in light of the newly discovered evidence of a statement made by his co-defendant to the police implicating a different offender other than defendant. This DNA issue did not provide a legal basis for relief under section 2-1401. Defendant seems to be asking for DNA testing based on Anderson s statement to police in only the Trak Auto robbery case. There is no evidence in either the trial court record or the appellate court decision in the Trak Auto robbery case that there was any blood, saliva or other genetic material on the gun or jacket which could be subject to DNA testing. Further, there is no evidence in either the drug store robbery or the jewelry store robbery cases that any DNA existed. Thus, defendant s claim for DNA testing in light of Anderson s statement was properly denied as a matter of law. Moreover, even if the gun could have been tested for the presence of DNA and even if such testing revealed that defendant s DNA was not present, such evidence would not exonerate him. The absence of defendant s DNA on the gun would not conclusively establish that he did not handle the gun or that he did not commit the Trak Auto robbery. Further, such DNA evidence would have had no effect at the motion to suppress the weapon because it would not have proved that the weapon or the jacket was not his when he had constructive possession of both items. Additionally, the evidence presented at trial established that defendant was involved 9 1-04-1090 in this robbery as the shooter. Two eyewitnesses positively identified defendant in two separate lineups as the gunman. Another eyewitness, who was shot in the neck, tentatively identified defendant as shooter. Even if defendant s DNA was not on this gun, this fact would not have negated or detracted from the credibility of these eyewitnesses. Further, this court found on direct appeal that the jury had sufficient evidence from which to conclude that defendant was the gunman during the robbery of the Trak Auto store. Allen, slip op. at 12. Therefore, defendant has not pled facts that would entitle him to relief under section 2-1401, and his petition was properly denied as a matter of law. Further, even if defendant s two-sentence issue could be construed to be solely a claim of newly discovered evidence that Anderson made a statement to police, when he pled guilty to a 1990 murder charge, that defendant was not at the Trak Auto robbery, this claim is contradicted by defendant s petition itself, which he verified by an affidavit. In the section 2-1401 petition, defendant states that during the armed robberies, he acted at the direction of his co-defendant [Anderson], who instigated the offense[s], rather than being the leader. In this statement, although in the context of a sentencing argument, defendant admits to being involved in all the armed robberies with Anderson, including the Trak Auto robbery. Therefore, defendant s allegation of alleged newly discovered evidence in the form of Anderson s statement is meritless. Accordingly, defendant s section 2-1401 petition was properly denied as a matter of law. For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. Affirmed. HOFFMAN, P.J., and CUNNINGHAM, J., concur. 10 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT _________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT ALLEN, Defendant-Appellant. ________________________________________________________________ No. 1-04-1090 Appellate Court of Illinois First District, Third Division Filed: November 28, 2007 _________________________________________________________________ JUSTICE THEIS delivered the opinion of the court. Hoffman, P.J., and Cunningham, J., concur. _________________________________________________________________ Appeal from the Circuit Court of Cook County Honorable James B. Linn, Judge Presiding _________________________________________________________________ For APPELLANT, Michael J. Pelletier, State Appellate Defender Rebecca L. Myhr, Assistant Appellate Defender Office of the State Appellate Defender 203 N. LaSalle St., 24th Floor Chicago, IL 60601 For APPELLEE, Richard A. Devine, State s Attorney James E. Fitzgerald, Assistant State s Attorney Kathryn Schierl, Assistant State s Attorney Sean J. O Callaghan, Assistant State s Attorney 300 Richard J. Daley Center Chicago, IL 60602

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