2013 I LApp (4th) 120860 NO. 4-12- 0860 I N THE APPEL LATE COURT OF I L L I NOI S FOU RTH DI STRI CT THE PEOPL E OF THE STATE OF I L L I NOI S, ) Appea l from Plaintiff-Appellee , ) Circuit Court of v. ) L ivingston County D' ARI OUS M. BOWENS, ) No. 08CF33

Def endant- Appellant. ) ) Honora

ble ) J ennife r H. B auknec ht, ) J udg e Presiding
.

______________________________________________________________________________

J USTI CE POPE delivered the judgment of the c ourt, with opinion. J ustice Ha

rris conc urre d in the judgme nt and opinion. Presiding Justice Steigmann dissente d, with opinion. OP INION ¶ 1 In J anuar

y 2009, a jury

convicted de fenda

nt D' Arious B owens of attempt (first degree murder) (720 I L CS 5/ 8-4, 9-1( a)( 1) (West 2008)), a g g ravated domestic batter y (720 I L CS 5/12-3.3 (West 2008)), a

nd two counts of ag g ravated batter y (720 I L CS 5/ 12-3 (West 2008)). The e vidence showed de fenda nt stabbed his g irlfriend multiple times in the torso, arms, ar mpits, wrists, and bac k. His defe nse at trial c enter ed upon a la ck of e vidence to prove he had the intent to kill. I n April 2009, the trial cour t sentence d defe ndant to 24 y ear s in prison. ¶ 2 Def

endant a ppeale d, arg

uing, in pa

rt, that the trial cour

t erre d by failingto excuse the trial judg e' s husband from the jur y for c ause. This c ourt aff irmed. People v . Bowens , 407 I ll. App. 3d 1094, 1120, 943 N.E.2d 1249, 1273 (2011) (Pope, J., di ssenting)
. ¶ 3 In May

2012, defe ndant pro sefiled a postconvic tion petition pursuant to the Pos t

## F I L E D Novem ber19, 2013 Car la Bend er 4 Dis tr ic t Ap pel la te t h Cour t, ILConviction HearingAct (A ct) (725 I L CS 5/ 122-1 through 122-7 (West 2012)), a lleg ing

ineffe ctive assistanc e of tria l counsel bec ause his lawyer f ailed to use a

pere mptory

challeng e to excuse the prospe ctive juror who was the tria l judge ' s husband. In August 2012, the trial court dismiss ed def

endant' s petition, concludingit was frivolous and pa tently without merit. ¶ 4 Def

endant a ppeals. We re verse and re mand with direc tions. ¶ 5 I . BA CKGROUND ¶ 6 We do not recount the e vidence at trial, as wediscussed it in our opinion followingdefe ndant' s direct a ppeal. Bowens , 407 I ll. App. 3d at 1095-96, 943 N.E.2d a t 1254- 55. Suffice it to say , the evidenc e of de fenda nt's guilt was overwhe lming. ¶ 7 On appe al, def endant a rgued, inter alia , the trial judg e committed re versible e rror by permitting he r husband to ser ve on the jury , despite def endant' s challeng e for

cause . The majority held def endant' s failure to exercise a pe remptory challeng e to Scott Ba

uknecht whe n he had per emptory

challeng es ava ilable amounted to an a ffirmative acquie scenc e to B auknec ht's jury service and a w aiver

of the issue on a

ppeal. Id . at 1100, 943 N.E.2d at 1258. The majority went on to find " [i ]n a situation l ike this, where defe nse counse l affir matively acquie sces to actions take n by

the trial cour

t, a def endant' s only

challeng e may

be pre sented a s a cla im for ineffe ctive assistanc e of c ounsel on collater al attac k." Id. at 1101, 943 N.E.2d at 1258. ¶ 8 Def

endant ha s now mounted a c ollatera l attack, a lleg ing in his pro se postconviction petition his l awyer w as ineff ective f or fa iling to use a

pere mptory

challeng e to
remove the trial judg e' s husband from the jur y . J udg e B auknec ht summarily dismiss ed the petition as frivolous and pate ntly without merit. This appeal followe d. We now reve rse a nd
rema nd with directions.
- 2 -¶ 9 I I . ANALYSI S

¶ 10 A def

endant may

proce ed under

the Act by

alleg ing that "in the pr ocee dings which resulted in his or her

conviction[,] there was a substantial denial of his or he r rights under the Constitution of the United States or of the State of I llinois or both." 725 I L CS 5/ 122-1(a )(1) (West 2010). " In noncapital c ases, the A ct establishes a three -stag e proc ess for a djudicatinga postconviction petition." People v . Andrews , 403 I ll. App. 3d 654, 658, 936 N.E.2d 648, 652 (2010). ¶ 11 "At the first stag e, ' the trial cour t, without inputfrom the State, e x amines the petition onlyto determine if [it alleg es] a constitutional deprivation unrebutted by the re cord, rende ringthe petition neither fr ivolous nor patently without merit.' " (Emphasis in orig inal.) Andrews , 403 I ll. App. 3d at 658, 936 N.E.2d at 652 (quoting People v . Phyfiher , 361 I ll. App. 3d 881, 883, 838 N.E.2d 181, 184 (2005) ). To withstand dismissal at the first stag e, the pe tition need only state the g ist of a constitutional claim for re lief and ha ve an a rguable ba sis in law or in fac t. People v . Hodges , 234 I ll. 2d 1, 11-12, 912 N.E.2d 1204, 1209 (2009). " A petition which lacks a n arguable ba sis either in law or in f act is one which is based on a n indisputably

meritless leg al theory

or a f ancif ul fac tual alleg ation." Id . at 16, 912 N.E.2d at 1212. Moreover , the " g ist" standard is a

low threshold that does not re quire a petitioner to set forth the c onstitut ional claim in its entirety

but, instead, requir es only a limited amount of detail. People v . Scott , 2011 I ll App (1st) 100122, ¶ 24. This cour t review s de novo a first-sta g e dismissal of a petition under the Act. People v . Dorsey , 404 I ll. App. 3d 829, 833, 942 N.E.2d 535, 539 (2010). ¶ 12 We look to Strickland v. W ashington , 466 U.S. 668 (1984), whe n consideringan ineffe ctive assistanc e of c ounsel claim. Unde r Strickland , a def endant must show both that
- 3 -counsel' s perf ormanc e " fell below a

n objective standa

rd of r easona

bleness" and the de ficient perf ormanc e pre

judiced the de fense
. Id. at 688. " [A] petition alleg ing ine ffe ctive assistanc e may not be summarily

dismiss ed if (i) it is arguable that c ounsel' s perf ormanc e fe ll below an objec tive standard of

rea sonablene ss and (ii) it is arguable that the de fenda nt was pre

judiced." Hodges , 234 I ll. 2d at 17, 912 N.E.2d at 1212. ¶ 13 Her e, def

endant ha s raised the g ist of a constitutional claim. His attorney allowed the trial judg e' s husband to be sea ted as a juror at a time he still poss essed pe remptory challeng es. Other c ourts have f

ound a violation of a de fenda nt's c onstitut ional rig ht to a fair tr ial wher e a spouse or other

close re lative of the pr esidingtrial judg e ser ves as a juror in the ca se, re g ardle ss of whe ther pe remptory

challeng es existed or not. See, e.g. , People v . Hartson , 160 A.D.2d 1046, 553 N.Y.S.2d 537 (N.Y. A pp. Div. 1990); State v. Tody , 2009 WI31, 316 Wis . 2d 689, 764 N.W.2d 737; Elmore v. State , 144 S.W .3d 278 (Ark. 2004) . Moreove r, our supre me cour t has held wher e a de fenda

nt is denied his rig ht to trial before a fa ir and impartial jury beca use of the wrong ful denial of a

challeng e for

cause , "his c onviction must be rever sed and he must rece ive a new tria l." People v . Taylor , 101 I ll. 2d 377, 387, 462 N.E.2d 478, 482 (1984). Thus, defe ndant' s claim has an a rguable ba sis in both fact and lawand should not have be en dismissed at the first stag e of the proce eding s. ¶ 14 Acc ording ly , we r ever se the summary dismiss al of de fenda

nt's postconvic tion petition and direc t the trial court to appoint counse l for def endant a nd proce ed to the sec ond stag e of proc eeding s. New c ounsel should determine whether defe ndant' s petition should be amended. People v . Boclair , 202 I ll. 2d 89, 100, 789 N.E.2d 734, 740-41 (2002); se e also 725 I L CS 5/ 122- 4 (West 2012). The State sha ll then file an a nswer or a motion to dism iss. 725 I L CS 5/ 122-5
- 4 -(West 2012). At the sec ond stag e, the tria l court " must determine whe ther the pe tition and any

acc ompanying doc umentation make a substantial showing of

a constitutional violation." People v. Edwards , 197 I ll. 2d 239, 246, 757 N.E.2d 442, 446 (2001). I f a substantial showingof a constitutional viol ation is set forth, the ca use will proce ed to the third stag e and a n evidentiar

y hear ing on the merits of the pe tition. Boclair , 202 I ll. 2d at 100, 789 N.E.2d at 740-41; see also Edwards , 197 I ll. 2d at 246, 757 N.E.2d at 446. ¶ 15 Fur

ther, a lthough the tr ial judge who pre sided over the trial would ordinarily hear defe ndant' s postconviction petition, thi s case now involves a de cision reg ardingwhether the trial judge ' s husband' s service on the jury violated def

endant' s constitutional rights. Since the issue involves a family

member of

the trial judg e, on re mand the Chief Judge of the Eleve nth J udicial Circuit is directed to assign a judg e other than J udg e B auknec ht to hear de fenda nt's postconviction petition and to appoint counsel for de fenda nt. See I ll. S. C t. R. 366(a)(5) (ef f. Fe b. 1, 1994); Raintree Home s, Inc. v . Village of Long Grove , 209 I ll. 2d 248, 262-63, 807 N.E.2d 439, 448 (2004) ; see a lso I ll. S. C t. R. 63C(1) (eff . Apr. 16, 2007) ( "[a] judge shall disqualify himself or her self in a pr ocee ding in whic h the judg e' s impartiality might re asonably be questioned" ). ¶ 16 I I I . CONCLUSI ON ¶ 17 The trial c ourt' s summary dismiss al of de fenda

nt's postconvic tion petition i s
reve rsed. Cause rema

nded for appointment of counse l and stag e-two pr ocee dings by a judg e other than Judge Ba

uknecht. ¶ 18 Reverse d and re manded with dire ctions.

- 5 -¶ 19 J USTI CE STEI GMANN, dissenting
.

¶ 20 Iagree with my distinguished collea gues that it was unwise f or the trial judg e to deny defe ndant' s challeng e for cause of the trial judg e' s husband' s servingas a juror in this case. Howeve r, consistent with the opinion Iwrote f or this court in People v . Bowens , 407 I ll. App. 3d 1094, 943 N.E.2d 1249 (2011) , when this ca se wa s last before this court, Idisag ree that the trial court e rre d by

dismiss ing de fenda

nt's postconvic tion petition at the first stage of the postconviction hear ing pr ocess. Ac cording ly , I respe ctfully

dissent.

- 6 -