No. 2--05--0757 Filed: 5-4-07

_________________________ __________

_____________________________________________ _ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

_________________________________________ __________

_____________________________ _ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Lak e C ou nt y. ) Plaintiff-Appellee, ) ) v. ) No. 02--CF--2 ) RUDOLPHO D. PI

NEDA, ) Honorab le ) John T. Phillip s, Defend ant-App ellant. ) Judge , Pres idin g.

_________

______________________________________________________________________ _ _ JUSTICE BYRNE de livered

the opinion of the c ourt: Defend ant, Rudolpho D. Pineda, appeals from the summary dismissal of his postconviction petition. See 725 ILCS 5/ 122 --2 .1( a)( 2) ( We st 200 4). Inthe petition, defendant alleges that his trial counsel was ineffective for failing to introduce evidence that one of the two complaining witnesses had a p ri or co nv ic ti on of

ba tt er y and then f

ailing to argue that the witness's violent cha racter supported the inferencethat defendant acted in self-defense . We affirm the summary dismissal of the petition. FACTS Following a jury trial, def endant was convicted of the attempted first-deg ree murd er

(720 IL CS 5 /8--4(a), 9--1(a) (West 2002)) of B art Borchers and armed violenc e (720 IL CS 5/12--4(a ) , 33 A--2 (West 2002)) directed toward Tony Bryson. The

trial court imposed consecutive priso nNo. 2--05--0757

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terms of 23 year

s for the attempted murder and 15 y ears for the armed violence. The court ordered defenda nt to serv e 85% of t

he 38-y ear aggreg ate term . The evidence at trial indicated that defendant stabbed B orchers and Bry son during a New Year's Eve par

ty a t the home

of Pat Schi fter. Th e defen se theor y w as that de fendant

acted in self-defense. Defend

ant arr iv ed a t the party with his girlf riend, Jamie Draper, and her friend, Latosha "Nicky " Cowell . There

was conf licting e vidence as to whethe r the partygoers ingested cocaine, marijuana, and

large amounts of

alcohol. Draper and defendant beg an arguing soon after they arrived, and Cowell saw Draper kissing B orchers while defenda n t was outsi de talkin

g with

someone else. Schifter and Bryson eventually as ked defen dant, Draper, and Cowell to leave, but Draper refused. Cowell overheard Borchers and Draper agree to che ck into a motel. Borchers and Bryson then confronted defendant in the kitchen and ordere d him to lea

ve. Def endant sa id he woul d leave wi th "the girls," but Borchers said " no." At trial, the parties disagreed on the de tails of the altercation

that followed, but t

here wa s no questi o n that defendant obtaine d a steak knife fr om a kitchen d rawer a nd cut Borchers

and Bry son sever al times. Ondirect appeal to this court, defendant argue d that he w as entitle d to a new trial bec ause (1) the prosecutor indoctrinat ed th e jury dur ing voir dire , (2) the trial court erroneously admitted certain hearsa y te stimony , and (3)the prose cutor impr operly argue d that soc iety

had an int

erest in convicting defendant. We rejected each of defend ant's arguments and affirmed his convictions on June 28, 2004. People v. Pineda , 349 Ill. App. 3d 815 (2004). OnApril 4, 2005, defendant filed a pro se petitio n for p ostconviction relief. He alleged, among other things, that trial counsel was ineffective for failing to question B orchers about a prior convictionof battery a

nd failing to argue that the c onviction supporte d defend

ant's po sition that

hisNo. 2--05--0757

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conduct was justified as self-defense. In this appeal, defenda nt does not raise any

of the oth er claim s set forth in the postconviction petition. OnJuly 1, 2005, the trial court entered a written order summarily dismissing de fe nda nt's petition as frivolous and patently without merit. As to the ineff ective assistance of

counsel claim, the cour t stated a s follows: "[Defe ndant] claims that his counsel knew of a prior record for dome stic battery and decided not to use i

t at trial. There is no evidence that there actually was a conviction, what type it was if it existed, what the date of it was, or even if it was of a ty pe that could be used for impeachment. It is impossible under these circu mstances to say if this would have amounted to ineffective assistance. *** Moreover, [defenda nt] does not establish any failure of the State to disclose

Borche rs' cr iminal re cord. [De fendant ] does not e stablish that a convictionactually

existed, what it

entailed, or whether it could have been used for impeachment even if a conviction existed." ANA LYSIS Onappeal, defendant

ar gues tha

t the tria l court e rred in s ummarily dismissing

his postconviction claim of

ineffective assistance of counsel. Def endant urges us to rema

nd the ca use for anevidenti ary

hearing on the mer

its. The Sta

te arg ues alte rnative bases on w

hich to affirm the summary dismissal. The State contends that (1) defendant waived the allegation bec ause he failed to raise it on direct appeal; (2) defenda nt failed to supplem ent his af

fidavit withsufficient evidentiary support that Borchers had a prior conviction of batter y that could have be en used for impeachment at trial; and (3) even if the prior conviction existed, the claim of ineffec tive assistance is frivolous and patently without me

rit beca use trial counsel's decision to omit the conviction from evidence wasNo. 2--05--0757

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a matter of trial strategy

and did not prejudice defendant. We affirm the summary dismissal, based on the Stat

e's thir d argu ment. The Post-Conviction Hearing Act (Act) establishes a procedure for de termining whether

a criminal defenda

nt was co nvicted in substantial violation of his or her constitutional rights. 725 IL CS 5/122--1(a) (West 2004). Proceedings under the Act are commenced by

the filing of

a petition inthe circ

uit court i

n which th e conviction o ccurred. 725 IL CS 5/122--1(b) (West 2004). The petition must

identify the proce eding in which the conviction occurred, state the date of the c ontested final judgmen

t, and cle arly

identify the alleg ed consti

tutional vi olations. 725 I LCS 5/122--2(West 2004). In add

ition, t he petition must be bo th verifi ed by affida vit (725 I LCS 5/1 22--1(b ) (West 2004)) and supported by

"affid avits, records, or other evidence" (725 IL CS 5/122--2 (West 2004)). If such "affidavit s, records, or other evidence" are unavailable, the petition must explain why. 725 IL CS 5/122--2 (West 2004). At the first stage of a postconviction proceeding in a nonca

pital cas e, the tr

ial cour t, within 90 day s of the f

iling an d docketi ng of a petition, shall review the petition and, in a written order that specifies findings of fact and conclusions of law, dismiss the petition if the court determines that the petition is frivolous or is pate ntly without me

rit. 725 I LCS 5/1 22--2.1( a)(2) (

West 2004) . "A post

convictionpetition is considered frivolous or patently w ithout merit if the p etit ion's allegations , taken

as true, fa il to prese nt the gi st of a meritori ous consti tutional claim." People v. Collins , 202 Ill. 2d 59, 66 (2002) ; People v. Gaultney , 174 Ill. 2d 410, 418 (1996). Our r evi ew of t he tri al cou rt's dismissal of a pos tconvict ion petition pursuan t to section 122--2. 1(a)(2 ) of the A ct is de novo . Peoplev. Edwards , 197 Ill. 2d 239, 247 (2001). To reach the legally

correct answer, we are

free to substitute our own judgment for that of the trial court. Edwards , 197 Ill. 2d at 247.No. 2--05--0757

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Becau se more often than not the defendant will be filing the petition pro se ( Peoplev. Porter , 122 Ill. 2 d 64, 70-7 5 (1988)) , the def endant' s burden a

t the firs tstage is lower than at stages later in the proceedings, when the def endant is assisted by counsel. The purpose is to give indigent defendan ts a m eaningful opportunity to be heard. Porter , 122 Ill. 2d at 74. Consequently , the supreme court has declared that the Act require s that a pro se petition pr esent on ly the gist of a

cons titutional claim. People v. Boclair , 202 Ill. 2d 89, 99 (2002). The "g ist" standard is a "lo w threshold." Gaultney , 174 Ill. 2d at 418. Although a "gist" is something more than a bare allegation of a deprivation of a

constituti onal rig

ht ( People v. Prier , 245 I ll. App. 3d 1037, 1040

(1993)) , it is something less than a completely ple d or fully stated c laim ( Edwards , 197 Ill. 2d at 245). Therefore, to set forth the "gist" of a constitutional cl aim, the pro se d efendant " 'need only present a limited amount of detail.' " Edwards , 197 Ill . 2d at 245, q uoti ng Gaultney , 174 Ill. 2d at 418. The defendant need not construct legal arguments or cite to legal au th or it y ( Porter , 122 Ill. 2d at 74); nor must the defendant plead sufficient facts from which the trial court could find a valid claim of deprivation of

a constitutional right ( Edwards , 197 Ill. 2d at 244-45). However , the supreme court has held that the failure to either attach thenecessa ry affida vits, rec ords, or other evidence or explain their absence is fatal to a postconviction petition and by itself justifies the petition' s summary dismissal. Collins , 202 Ill. 2d at 66. Inthis appe al, defendant argues that he stated the gist of a constitutional claim of ineffective assistance of

counsel. Both the United States and Illinois Constitutions guarantee a defe ndant the right to effective assistance of counsel. See U.S. Const., amend. VI; I ll. Const. 1970, art. I, §8. The purpose of this guarantee is to ensure that the defe ndant receives a fair trial. Strickland v. Washington , 466 U.S. 668, 684-85, 80 L. Ed. 2d 674, 691-92, 104 S. Ct. 2052, 2063 (1984). TheNo. 2--05--0757

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ultimate focus of the inq

u iry is on the f

undament al fairness of the

challen ged pr oceedin gs. Strickland , 466 U.S. at 696, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069. How ever, th ere is a strong presumption of outcome reliab ility , so to pre vail, a de fendant

must show that counse l's cond uct "so undermined

the proper functioning of thea dversarial process that the trial cannot be re lied on as having produced a ju st result. " Strickland , 466 U.S. a t 686, 80 L. Ed. 2d at 692-93, 104 S. Ct. at 2064. Under Strickland , defense counsel is ineffective only if (1) counsel's performance fell below

anobjective standard of reasonableness; and (2) counsel's error prejudiced the defe ndant. Failure to establish either prong is fatal to the claim. Strickland , 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. a t 2064. A court need not decide whether counsel' s performance was deficient bef ore analyzing whether the defendant was prejudiced. People v. Cortes , 181 Ill. 2d 249, 295-96 (1998). The burden is on the defendant to affirmatively prove prejudice. Strickland , 466 U.S. at 693, 80 L. Ed. 2d at 697, 104 S. Ct. at 2067. To establish prejudice, the defendant must show that "there is a reasonable probability that, butfor counsel's unprofessional errors, the result of the proceeding would have been differ ent." Strickland , 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. "A reasonable probability is a probability sufficient to under mine confidence in the out come. " Strickland , 466 U.S. a

t 694, 80 L . Ed. 2d at

698, 104 S. C t. at 2068. The pre ju d ice component of Strickland

entails more than an "outcome-determinative test"; rather, the defendant must show that deficient perfor mance of counsel r

endere d th e result o f the trial unreliable or the proceeding fundamentally unfa

ir. People v. Richardson , 189 Ill. 2d 401, 411 (2000). Inthis appeal, defendant argues that his postconviction petition stated the gist of a claim of ineffective assistance of counsel because (1) Borchers had a prior conviction of batter y; and (2) trialNo. 2--05--0757

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counsel was ineffective for failing to introduce evidence of the conviction and arg ue that defendant acted in self-de fense be cause B orcher s had viole nt tenden cies. When the theor

y of self-de fense is

raised, evidenc e of the v ic tim' s aggressive and violent character may be offe red for two reas ons: (1) to show t hat th e defen dant's knowl edge of t he vic tim's violenttende ncies affect ed the defend ant's perceptions of and reactions to thevictim's behavior; and (2) to support

the defe ndant' s version

of the fa cts wher e there are confli ct ing accounts of what happened. Peoplev. Ly

nch , 104 I ll. 2d 194, 199 -200 (198 4). Unde r the fir st approa

ch, Bor chers' prior conviction of battery --assuming he had one--would have been relevant only

if defendant was

aware of it at the time of the incident, and defendant does not allege that he was. Under

the second approac h, defen dant's k nowledg e is irre levant. The State concedes that

defendant properly

raised the theory of se lf-defense. However, the State poi nts out that a trial court's decision to admit or exclude evidence of a victim' s violent character is subject to the abuse-of-discretion standard of review ( People v. Nunn , 357 Ill. App. 3d 625, 630 (2005)) ; and bec ause def endant w as not entitled

to the admission of a prior conviction, he cannot establish that the outcome of the trial would have b een di fferen t. Ass umin g arguendo that Borchers had a prior conviction of battery and th at the trial court would have admitted it under Ly nch , we nevertheless conclude that the outcome of the trial would not have been different and that therefore defendant has fa iled to establish the prejudice prong of Strickland

. Even if a prior conviction of battery were used to discredit Borchers, the te stimony of th e other victim, Bryson, would have been unimpeached. Bryson corroborated Borchers'

testimony, and therefore, any

attempt to

undermine Borchers' version of events would likely ha ve been futile. To establish prejudice, defendant must showthat " there i s a reas onabl e prob abili ty that, but fo r coun sel'sNo. 2--05--0757

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unprofessional errors, the result of the proceeding would have been dif ferent." See Strickland , 466 U.S. at 694, 80 L. Ed. 2d

at 698, 104 S. Ct. at 2068. Taking every factual allega tion in def

endan t's postconviction petition a s true, we conclude that def endant c annot show

that ther e is "a prob ability sufficient to undermine confidence in the outcome" that the result of the proc eeding

would have been different if counsel had attempted to impeach Borchers w ith aprior conviction. Strickland , 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Defendant

cites Edwards in argu

ing that "in the context of a claim of

ineffective assistance of counsel, it is 'unreasonable to place a burde n on a pro se defendant to demonstrate the merits of his hypothetical appe al.' " Edwards , 197 Ill. 2d at 254. Defendant cites this premise a nd Peoplev. Shevock , 353 Ill. App. 3d 361, 365 (2004), for the proposition that "a pro se postconviction petitioner is not required to prove Stri cklan d's 'prejudice' prong at stage one" to sur

vi ve summary dismissal. Shevock f iled a pos tconvict

ion petition, and at t

he first stage of proceedings the

trial court summarily dismissed it as frivolous and patently without merit. Shevock , 353 Ill. App. 3d at 362. Th e Appell ate Co urt, F ourth Dist rict, affirm ed the summ ary dismi ssal, hold ing th at Sh evock 's petition w as "so vague, so conclu sory , and so utt erly bereft of any factua l detail w hatsoeve r that it falls short of the liberal pleading standards of Boclair and Edwards ." Shevock , 353 Ill. App. 3d at 362. In the context of af fi rming the summary

dismissal, the Fourth District set forth a lengthy disc ussion of the pleading standards of Edwards . The Shevock court commented on Edward s a s follows: "To allege, in its entirety, a claim of inef fective assistance of counsel, the defenda nt in Edwards would have had to allege not only his attorney' s substandard performance (seeNo. 2--05--0757

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Strickland

v. Washington , 466 U.S. 668, 690, 80 L. Ed.2d 674, 695, 104 S. Ct. 2052, 2066 (1984))--and

he did so by

alleging the attorne

y' s refusa l to file a n appea l--but he also had t

o allege a reasonableprobabil ity t hat the r esult in his

case wo uld have be en diffe

rent had his attorney filed the appeal (see Strickland , 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068). Allegin

g preju dice wou ld have e

nta ile d 'demo nstrat[ing ] the merits of his hypothetical

[pos tplea moti on and ] app eal.' Edwards , 197 I ll. 2d at 254 ***. The defendant alleged no facts establishingprejudice, and thus his claim was incomplete: it was merely the 'gist' of a claim. Edwards , 197 I ll. 2d at 24 5 ***. Bu t the 'gis t' of a cl aim was all the Post-Conviction Hearing Act (725 IL CS 5/122--2 (West 2002)) required at the first stage of the postconviction procee ding ( Edwards , 197 Ill. 2 d at 244 ** *), and h e had sta ted the ' gist' by alleging at least one factual element, namely, the attorne y's substanda

rd performance by refusingto file an appeal (Edwards , 197 Ill. 2d at 242 ***). Given that factual a llegation, summary dismissal of the petiti on was pr emature . The pet

ition was n

ot 'so completely lacking in substance that

it [was] frivolous or patently without merit .' Edwards , 197 Ill. 2d at 257 ***. On its fac e, the pe tition had p otential merit: the defenda nt was we ll on his way to stating a via ble claim of ineffective as sistance of c ounsel." Shevock , 353 I ll. App. 3d at 365. Defendant

interpre ts this dicta

in Shevock

a s barring the summary dismissal of a postconviction petition due to the pet i tioner's failure to allege pre judice in support of a claim of ineffective assistance of

counsel. While the holding in Shevock was limited to the level of pleading detail necessary

for a petition

to survive summary dismissal, this case pre sents the distinct issue of whether a p et it io n p le d i n d et ai l i s n ev er th el es s f ri vo lo us an d p at en tl y w ithout mer it because theNo. 2--05--0757

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factual allegations could never support the claim. Thi s distinction undermi nes Shevock 's persuas iveness. Furthermore, if

we we re to ad op t d ef

en da nt 's po si ti on , w e w ou ld es se nt ia ll y g rant all postconviction petitioners the right to an evidentiary hearing on a claim of ineffec tive assistance of counsel so lo ng as th ey s im pl y al le ge d a ny de minimis error of counsel . Announc ing such a rule would undermine the pur

pose of section 122--2. 1(a)(2 ) of the A ct, which authorizes the summary dismissal o f claims t

hat are frivolou s or pate

ntly without me

rit. Also, we note that one district of the state appellate court is not alway s bound to follow the decisions of other districts, even though there may be compelling reasons to do so when addressing factua lly similar cases. In re May

1991 Will County Grand Jury , 152 Ill. 2d 381, 398 (1992). We are not compelled to follow Shevock , which wa s issued by the Four th District. Most importantly, we question whether Shevock is goo d l aw. Ina

supreme court case that postdates Shevock , a postconviction petitioner alleged the ineffective assistanc e of coun sel, and our supreme court af firmed th e summary

dismiss al of the petition under section 122--2.1(a)(2) of the Act, based on

the petiti oner' s failure

to meet the prejudice prong of Strickland

. People v. Robinson , 217 Ill. 2d 43, 63 (2005). I n Robinson , the defendant arg ued that his appellate counsel was ineffective for fail ing to argue that a witness's out-of-court statement to police that the defenda nt was

one of the shooters was inadmissible hearsay

. Robinson , 2 17 Ill. 2d at 62. Deciding that the statement was admissible under the spontaneous declaration exception to the hearsay rule, the supreme court affirmed the summary dismissal and held that"appel late cou nsel's f ailure to raisethe i ssue was not an error and did not prejudice defendant ," as must be established under Strickland

.No. 2--05--0757

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(Emphasi s added.) Robinson , 217 Ill. 2d at 63

. Robinson i s directl y on point, and

we follow

it rather than Shevock

. Inagreement with Robinson , the appellate court has reac hed the sa me result in several subseque nt cases. S ee, e.g. , People v. Barcik , 365 Ill. App. 3d 183, 191 (2006) ("[h]ere, eve n assuming counsel was deficient for n ot cal ling d efenda nt's fi ancée [ to tes tify], d efenda nt's [postconviction] claim would still fail because def endant c annot est

ablish pr ejudice "); People v. Williams , 364 Ill. App. 3d 1017, 1027 (2006) (dismissal of pet ition at fi rst stag e was ap propria te because "defe ndant has failed to state the gist of a meritori ous c laim t

hat couns el's fa

ilure to investig ate his fitnes s and req uest a fit ness hea ring pr ejudice d him"); Peoplev. Phy fih er , 361 I ll. App. 3d 881, 887 (2005) (where trial counsel ag reed to continuanc es that tolled the speedy tria l period, the summar

y di smissal of

a postcon

viction pe

tition alle ging ineffec tive assi stanc e was neverth eless appropriate, because "[h]ad trial counsel not agr eed to the continuances, the record does notreflect the outcome of trial or sentencing would have been differ ent"). Thus, we may a

ffirm the summary dism issal of defe ndant 's postconviction claim of ineffective assistance of counse l becaus e he cannot meet the prejudice prong of the Strickland

test. For the preceding rea sons, the judgment of the circuit court of L ake County is affirme d. HUTCHINSON and GI

LLERAN JOHNSON, JJ., concur.