## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

People v . Oaks , 2012 IL App (3d) 110381

Appellate Court Caption THE PEOPLE OF THE STATE OF IL LINOI S, Plaintiff-Appe l lee, v. DOUGL AS E. OAKS, Def

endant- Appellant.

District & N o. Third District Docke t No. 3-11-0381

Filed November 7, 2012

Held ( Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) On appeal from the dismiss al of defe ndant’s postconviction petition afte r
a t h i rd-stage evidentiary hearing and the denial of leave to file a supplemental postconviction petition during the third-stag e hearing, the appellate court reje cted defe ndant’s contentions that he rec eived ineffe ctive assistance based on c o u n s e l’ s failure to prese nt evidenc e of his abusi ve childhood and that a supplemental petition should have been allowed, since that evidenc e did not neg ate the severity o f t h e v ictim’s injuries, even though it was rele vant to t h e d ec i sion to impose a death sentenc e, and the commutation of the death sentencerende red moot the sentenc ing issues and the ineff ective a ssistance c laims.

Dec ision Under Review Appeal fr o m t he Circuit Court of Henry County
, No. 92-CF- 235; the Hon. Charles H . Stenge l, J udg e, pre siding.

J udg ment Affirmed.Counsel on

Appea l Anne E. Carlson, J usty na Gar baczewska Scalpone and Tiffany Boy e Gre en (ar g ued), all of State Appellate Def ender ’s Offic e, of Chicag o, for appellant.

Tere nce M. Patton, State’s Attorney
, of Cambridg e (Ter ry A. Mertel and Dawn D. Duffy (ar g ued), b o t h of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J US TI CE McDAD E delivere d the j udg ment of t he court, with opinion. J ustices L ytton and Carter

concur red in the judg ment and opinion.

OP INION

¶ 1 I n this appeal, defe ndant, Doug las E. Oaks, contests the dismiss al of his postconvic tion petition afte r a third-stag e evidentiary hearing. Defen d an t als o challeng es the trial court’s denial of his reque st for le av e t o file suppl emental postconviction claims during the t hirdstag e evide ntiary

hearing. F or the re asons stated be low, we a ffirm.

¶ 2 FACTS ¶ 3 I n 1992, defe ndant was char g ed with two counts of first deg ree murder for the death of h i s girlfriend’ s three -y ear -old son (the victim). The State filed a notice to seek the d ea t h 1 penalty

. Def

endant’ s family retained a private attorne y to repre sent him. Def

endant filed a pretria l motion asking the court to appoint multipl e expe rt s t o assist him in prepa ring his defe nse. The court d en i ed defe ndant’s motion, rea soning that, beca use defe ndant was repr esente d by private counsel, he was not indige nt and there fore did not qualify for financ ial assistance to hire experts. As a result, private counsel withdrew from the case and the court appointed th e p u b lic defe nder afte r finding defe ndant indige nt. The matter proce eded to a jury trial. ¶ 4 Def

endant testified that he became frustrated with the victim when t h e v i ct im wet his p ants

. As a result, defe ndant t hrew the vi ctim toward a mattress. I nstead of landing on t h e mattress, the victim landed on the floor. De fendant denied intentionally harming the boy

. ¶ 5 The State alleg ed that defe ndant violently shook the victim and slammed him ag ainst an object, causing his brain to bleed and swell, which led to his death. The State called multipl e doctors who opi n ed t hat t he victim ’s i njuries were so extensive that they had to be caused

T he fa ct s unde rl ying thi s cas e ar e ful ly dis cus sed in Peop le v. Oaks
, 169 I ll

. 2d 409 (19 96)
, 1 and wil l b e r epe at ed h er e on ly as nec ess ar y to r eso lve t he i ssu es cur re ntl y on app eal

.
-2-by violent shaking and by impact applied with a g reat amount of forc e, rathe r than b y the

actions desc ribed by

defe ndant. ¶ 6 The j u ry fo u n d d ef endant g uilty of two counts of first deg ree murder. After defe ndant waived his rig ht to a jury for sentenc ing purposes, the trial court found defe ndant elig ible for the death penalty based upon the evidenc e prese nted at the g uilt phase

. At the second stag e of the sentenc ing hearing, the State prese nted evidenc e in ag g ravation t h at d efe ndant had been arrested for drug possession in 1985, when he was 18. Def endant admitted that he had obtained the drug s, as well as several handg uns, a knife, money and j ew el ry , when he had burg larized the home of a roommate’s pare nts. Def endant was convicted of burg lary and the drug char g es were dismiss ed. I n 1989, defe ndant resisted arr est afte r assaulting his g irlfriend and brea king her a rm. He w as sentenc ed to one y ear in jail and order ed to unde rg o alcohol counseling

. I n 1990, defe ndant was arr ested for public intox ication, disorderly conduct, and interfe ring with official a cts. ¶ 7 Def

endant presented, as evidenc e in mitigation, inter alia
, the t estimony of Dr. Robert Chapman, a psy chiatrist. Dr. Chapman stated that he revie wed “testimony
, hospital reports, autopsy repor ts” and defendant’s videotaped statements prior to examining hi m in person. Ba sed u p o n this examination, Dr. Chapman testified that in his opinion defe ndant acte d under the influenceof an e x treme e motional dist urbanc e whe n he killed the victim. ¶ 8 During t h e S t at e’ s cr o s s -e x amination, Dr. Chapman reve aled that he believed that defe ndant was abused as a child. Chap m an we nt on to explain that he believed the abuse suffe red by defe ndant a s a child cause d him to “snap” and abuse the vi ctim. Dr. Chapman testified that an adult who had been abused as a child could rea ct violently to incidents that would seem insignificant to o t h ers, like the victim’s wetting his pants. The trial court, in sentenc ing defe ndant, reje cted Dr. Chapman’s finding that there had been an extreme mental or emotional disturbanc e which w ould prec lude impositi on of the de ath pena lty

. ¶ 9 Whil e his direc t appea l to the supreme court was still pending
, defe ndant filed a pro se postconviction petition in which he claimed, inter alia
, that the t ri al co urt’s holding that defe ndant could only obtain financ ial assistance to retain ex p er t wi tnesses if he wer e repr esente d by a public defe nder resulted in him having to choose betwee n two constitutional rig hts: the right to counsel of choice and the rig ht to prese nt expert witnesses necessary t o the defe n s e. T h e p et i tion was amende d to include a claim that defe ndant was deprive d of eff ective assistance of trial counsel wher e counsel failed to prese nt evidenc e, at sentenc ing, of abusedefe ndant suffe red during his c hildhood. ¶ 10 Ultimately
, the supreme court aff irmed defe ndant’s conviction and sentenc e. Oaks
, 169 I ll. 2d at 471. Specifica lly , the court held: “[T] he rec ord establishes that the victim’s injuries wer e sever e, that defe ndant inflicted them with e x treme and violent f orce , that he did so in se parate acts, and that the victim suffe red prolong ed pain. Thus, the trial court did not err in concluding that defe ndant was elig ible for death under section 9-1(b) (7) [of the Criminal C ode of 1961 ( I ll. Rev. Stat. 1991, ch. 38, ¶ 9-1(b) (7)) ,] wher e the murder was exceptionally brutal or heinous and indicative of w anton cr

uelty .” Oaks , 169 I ll. 2d at 465-66. The court also found that the trial court’s reje ction of Dr. Chapman’s testimony was a proper

-3-exercise of discretion. Oaks , 169 Ill. 2d at 468. ¶ 11 Whil e the postconviction proce eding s wer e p en d i n g, d ef endant’ s death sentenc e wa s commuted by the Governor of I llinois to life imprisonment. I n 2004, the trial court dismiss ed defe ndant’s amende d petition, holding that all the sentenc ing claims wer e rende red moot by th e commutation of defe ndant’s death sentenc e. The court also held that the g uilt phase claims wer e either proce durally barr ed or without merit. Def endant appealed an d we
reve rsed, holding that three of the sentenc ing claims wer e rele vant to elig ibilit y and thus wer e not moot under People v. Mata
, 217 I ll. 2d 535 (2005). People v. Oaks
, No. 3-04-0645 (Apr. 12, 2006) (unpublished orde r under Supreme Court Rule 23). ¶ 12 On re m an d
, t h e trial court g rante d an evidentiar y hear ing on the claim of ineff

ect i v e assistance of t rial counsel for fa i l u re t o prese nt evidenc e of child abuse, but dismiss ed the other two claims. The evidentiary hearing was bifurcated into perf orm an ce an d prejudice proce eding s. ¶ 13 Def

endant filed a reque st for leave to file a supp l em en t al p et ition alleg ing: (1) a ctual innocenc e of the exceptionally brutal and heinous ag g ravating fac tor underlying defe ndant’s elig ibilit y for life imprisonment, b as ed on new medical evidenc e, and (2) ineffe ctive assistance of appellate counsel for failure to raise a potentially meritorious counsel-of -choic e issue on direc t appea l. Defe ndant’s re quest for le ave w as subseque ntly denied. ¶ 14 Ultimately
, the trial court also d en i ed d efendant’s postconviction petition. Whil e the court found that counsel’s perf ormanc e was defic ient wher e he failed to conduct a sufficie nt investigation, it concluded that the def iciency did not prejudice de fendant.

¶ 15 ANALYSI S ¶ 16 Def

endant arg ues t he trial court erre d in: (1) dism issing his postconviction p et i t i o n o n the grounds that he was not deprive d of ef fec tive assistanceof counse l where trial counsel failed to investigate and prese nt evidenc e of defe ndant’s abusive childhood at the sentenc ing proce eding s, and (2) denying defe ndant’s reque st for leave to file supplemental claims of actua l innocenc e and ineffe ctive assistance of appellate counsel for failu re to raise a potentially

meritorious counsel- of-c hoice issue on dire ct appe al. ¶ 17 Ho we v er , as a threshold matter, the State arg ues that rea ssessment o f d ef en d an t ’s sentenc ing issues is moot. Specifically
, the State arg ues that the “holding in People v. Mata
, 217 I ll. 2d 5 3 5 (2005) does not require a rea ssessment of defe ndant’s sentenc ing issues.” Defendant, howeve r, calls our attention to the fac t that we have alre ady held t h at Ma t a require s that defe ndant ’s sentenc ing issues be hear d. See People v. Oaks
, No. 3-04-0645 (Apr. 12, 2006) (unpublished order under Supreme Court Rule 23). Specifically
, we stated:

“Mata is now binding authority and re q u i res rea ssessment of sentenc ing issues arg uably attacking the evide n ce supporting a finding of defe ndant’s elig ibilit y for the death penalty

. I s sues to be rea ssessed on remand include claims I
, X, and XI
, which

conce rn the admissibili ty of evidenc e at the sentenc ing hearing and ineffe ctive assistance of trial and appellate counsel.” P eo p l e v. Oa ks
, No. 3-04-0645, slip op. at 7 (Apr. 12, 2006) (unpublished orde r under Supreme Court Rule 23).

-4-Thus, defe ndant conclude s that the “law of the cas e” d o ctrine mandates a finding that his

sentenc ing issues a

re not moot. ¶ 18 The “ law of the case ” doctr ine bar s relitigation of an issue alr eady decide d in the same

case

. People v. Tenner
, 206 Ill. 2d 3 8 1
, 3 9 5 (2 002). “Rulings on points of law made by a court of revie w are binding in that case up o n re m an d t o t he trial court and on subsequent appeals to that same revie wing court unless a higher court has changed the law .” (Emphasis added.) Petre v . Kucich , 356 I ll. App. 3d 57, 63 (2005). ¶ 19 Whil e defe ndant correctly asserts that Mata is still g ood law, we note that subsequent to

our 2006 decision in the instant case ( People v. Oaks
, No. 3-04-064 5 (A p r. 12, 2006) (unpublished order under Supreme Court Rule 23)), the supreme court in People v. Adkins
, 239 I ll. 2d 1 (2010), clarified the limit ed scope of the Mata h o l d i n g. W e revie w both the Mata and Adkins decisions. ¶ 20 I n Mata
, a defe ndant whose death sentenc e had been commuted to a sentenc e of natura l 2 life in prison challeng ed the statutory ag g ravating fac tor that had been used to fin d h er elig ible for the de ath pena lty . Had she not been f ound death- elig ible, she would have bee n sentenc ed to a term of y ear s with the possibili ty of eventua l parole

. Her arg ument on appeal

was that the State had not proven the statutory ag g rava ting fac tor of commission of murder in “a cold, calc ulated and preme ditated manner pursuant to a prec onceive d plan, scheme or desig n to take a human life by unlawful means” (720 IL CS 5/9-1(b)( 11) (West 1998)) bey ond

a rea sonable doubt. Mata
, 217 I ll. 2d at 539. I n response , the State alleg ed that defe ndant’s appeal should be dismiss ed as moot due to the commutation of her death sentenc e to natura l life imprisonment. Mata , 217 I ll. 2d at 541. ¶ 21 T h e Ma t a court determined that the i ssue was g overne d by the Unit ed S tates Supreme Court’s decisions in Apprendi v. New Jerse y , 530 U.S. 466 (2000), and Ring v. Arizona
, 536 U.S. 584 (2002). In Apprendi
, the Court held that “[o] ther than the fac t of a prior conviction, any fac t that incre ases the penalty for a crime bey ond the presc ribed statutory maxi mum must be submitt ed to a jury
, and proved bey ond a rea sonable doubt.” Apprendi
, 530 U.S. at 490. I n Ring
, the Court noted that the aggr av at i n g fac tors that allow imposit ion of the death penalty operate as “ ‘the fu nctional equivalent of an element of a g reater offe nse.’ ” Ring
, 536 U.S. at 609 (quoting Apprendi , 530 U.S. at 494 n.19). ¶ 22 Ultimately
, the Mata court held that the defe ndant was entitled to claim that the evidenc e of the ag g ravating fac tor was insufficient, despite the comm u t at i o n of her death sentenc e. Mata
, 217 I ll. 2d at 550. The court rea soned that even though her death sentenc e was commuted, she was still subject to the eff ects of the finding of elig ibilit y in light of the fac t that had she not been found death- elig ible, she would have been sentenc ed to a term of y ear s with the possibili ty of parole

. Mata
, 217 I ll. 2d at 542-43. The court reje cted the State’s mootness arg ument and the matter was remanded to the appellate court for consideration of the merits of he r appe al. Mata , 217 I ll. 2d at 550-51. ¶ 23 I n Adkins
, the defe ndant was charg ed with felony murder

. W h i l e the defe ndant’s trial

T he fa ct s unde rl ying Ma ta wer e dis cus sed and summ ar ized in Adki ns

. Wh er e re le vant, we 2

use th e Adki ns cou rt ’s summ ar izat ion

.
-5-counsel challeng ed the State’s fac tual basis reg arding the murder element, counsel conce ded

at t rial and the guilt phase that he commit ted t he felony o f re s idential burg lary

. Def endant

was ultimately convicted and sentenc ed to de ath. Citi ng People v. Johnson
, 128 I ll. 2d 253 (1989), and People v. Hattery
, 109 I ll. 2d 449 (1985), defen d an t arg ued on appeal that his counsel’s strateg y was flawe d beca use “[i] f it failed and the jury convicted [defendant] of the murder, he h ad n o d ef

ense to his elig ibilit y for the death penalty beca use of counsel’s

conce ssion that [ he] had committed residential burg lary .” ¶ 24 The defe ndant did not analy ze his claim und er t h e s t an d ar d set out in Strickland v. W ashington
, 466 U.S. 668, 687 (1984). I nstead, he arg ued that counsel’s strateg ic choice at the g uilt phase
, althoug h it mig ht have been a rea sonable trial strateg y , deprive d him of his rig ht to demand that the State prove his elig ibilit y for the death penalty bey ond a rea sonable doubt. Adkins
, 239 I ll. 2d at 43. Thus, the defe ndant arg ued that the question prese nted was whether under Johnson and Hattery he was deprive d of his rig ht to an adver sarial hearing at the elig ibilit y phase beca

use counsel conce ded his g uilt of residential burg lary at t h e gu ilt phase. Adkins , 239 I ll. 2d at 43. The def endant c ited Mata in support of his positi on. ¶ 25 Up on revie w, the Adkins court found the defe ndant’s death sentenc e did not violate Ma ta

. Adkins , 239 I ll. 2d at 46. Specifically , the court stated: “De fendant offers Mata as support for his arg ument that beca use a statutory ag g ravating factor is the ‘functional equivalent’ of an element of the offe nse of capital murder, defe nse counsel’s conce ding exis tence of any one of the char g ed agg ravating fac tors amounted to a g uiltyplea ‘ to a new of fense ’ without his consent to such a plea. At oral arg ument, counsel used t h e ex pression t hat t rial counsel had ‘pleaded guilty to elig ibilit y .’ Mata does not support this arg ument. The c onstitut ional rig ht at stake in Apprendi
, Ring
, and Mata was the sixth amendme nt r ight to trial by jury

–to have eac h element of

eac h offe nse proved to an impartial jury bey ond a re asonable doubt. The constitutional rig ht at stake in [ United States v. ] Cronic
, [466 U.S. 648 (1984),] Hattery
, and Johnson

was the six th amendment rig ht to the eff ective assistance of counsel. Def endant does not make an Apprendi -base d arg ument. Even under the Apprendi line of case s, no err or occur red

. At t h e beg inning of the sentenc ing phase, the State moved to rea dmit all evidenc e prese nted at trial. The motion

was g rante d. Def

endant’ s elig ibilit y for the death penalty was shown to the trial court–an impartial finder of fac t–by overw helming evidenc e that he was interrupted by the victim while in the act of burg larizing her apartme n t an d t h at he killed her to avoid being identified. Thus, the finding of elig ibilit y for the death sentenc e did not violate Apprendi
, Ring , or Mata .” Adkins , 239 I ll. 2d at 46. ¶ 26 Like Adkins
, the instant case does not p re s en t u s wi t h an Apprendi -base d arg ument. I nstead, the constitutional rig ht at stake in the instant case is the six th amendment rig ht to the eff ective assistance of counsel. Even under the Apprendi line of case s no err or occur red. The supreme court, in the instant case , has alre ady expressly aff irmed the trial court’s finding that defe ndant was elig ible for death under section 9-1(b) (7) wher e the murder was exceptionally brutal or heinous and i n d i ca t i v e o f wanton crue lty

. See Oaks
, 169 I ll. 2d at 465-66.

-6-Specifically
, the court found that the rec ord established that the defe ndant’s victim’s injuries

wer e “seve re, that defe ndant inflicted them with extreme and violent forc e, that he did so in separ ate acts, and that the victim suffe red prolong ed pain.” Oaks
, 169 I ll. 2d at 465-66. Thus, the finding of elig ibilit y for the death sentenc e did not violate Apprendi or Mata

. Adkins
, 239 I ll. 2d at 46. ¶ 27 I n coming to this conclusion, we emphasize that evidenc e of t h e defe ndant’s abusive childhood does not neg ate the severity of t he victim ’s i njuries, t he amount o f ex treme and violent forc e defe ndant inflicted upon the victim, or the pain the v ictim endure d. Whil e evidenc e of a defe ndant’s abusive childhood or other mitigating evidenc e may fac tor into a trier of fact ’s d i s cretionary decision of whether to actua lly impose a sentenc e of death or, alternatively
, life in prison, it does not chang e a defe ndant’s elig ibilit y status. Consequently
, any claims of ineffe ctive assistance involving evidenc e of defe ndant’s abusive childhood or defe ndant’s sentenc ing issues wer e rende red moot upon commutation of his death sentenc e. ¶ 28 W h i l e o u r ab o v e an al y s i s results in us not rea ching the merits of de fe n d an t ’s postconviction petition, we are still left with the question of whether the trial court err ed in denying defe ndant’s request for leave to file suppl emental postconviction claims o f actua l innocenc e and ineffe ctive assistan ce o f appellate counsel for failure to raise a potentially meritorious counsel-of

-choic e issue on direc t appeal. A trial court’s decision on whether or not to g rant leave to counsel to file an a ddendum to an ame nded postconviction petition is revie wed f

or an a buse of discr etion. People v . King , 192 I ll. 2d 189, 193 (2000). ¶ 29 A trial court must obey the clear and unambig uous direc tions in a mandate i ssued by a revie wing court. People v. Daley
, 92 I ll. 2d 271, 276 (1982). We previously remanded with the following mandate: “We reverse the dismiss al of sente ncing issues as framed in c laims I
, X and XI and

remand for further proce eding s.” People v. Oaks
, No. 3-04-0645, slip op. at 7 (Apr. 12, 2006) (unpublished orde r under Supreme Court Rule 23). ¶ 30 I n light of our specific remand, we cannot say that the trial court abused its discretion in denying defe ndant’s reque st for leave

. Moreove r, we note that the Post-Convi ction Hea ring Act (the Act) (725 IL CS 5/122-1 et seq. (West 2010)) is entirely a cre ature of statute, and the leg islature has mandated specific require ments that a petitioner must meet to asser t a claim under the Act. Allowing a def endant to bring a new postconviction claim at the third stag e of the proce eding s, there by bypassing the first and/or second stag es, challeng es the integ rity of the Act. I f defe ndant wishes to bring his two supplemental claims, he may file a succe ssive postconviction petition as discussed in section 122-1(f ) of th e Act. 725 IL CS 5/122-1(f) (West 2010). Such petition will be subject to the cause -and- prejudice test under the Act. See 725 IL CS 5/ 122-1(f

) (West 2010). ¶ 31 For

the fore g oing reasons, weaff irm the judg ment of the trial c ourt.

¶ 32 Affirmed.

-7-