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

_________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

_________________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of Lake County.

)

Plaintiff-Appellee, )

)

v. ) No. 02--CF--2

)

RUDOLPHO D. PINEDA, ) Honorable

) John T. Phillips,

Defendant-Appellant. ) Judge, Presiding.

_________________________________________________________________________________

JUSTICE BYRNE delivered the opinion of the court:

Defendant, Rudolpho D. Pineda, appeals from the summary dismissal of his postconviction

petition. See 725 ILCS 5/122--2.1(a)(2) (West 2004). In the petition, defendant alleges that his trial

counsel was ineffective for failing to introduce evidence that one of the two complaining witnesses

had a prior conviction of battery and then failing to argue that the witness's violent character

supported the inference that defendant acted in self-defense. We affirm the summary dismissal of

the petition.

FACTS

Following a jury trial, defendant was convicted of the attempted first-degree murder (720

ILCS 5/8--4(a), 9--1(a) (West 2002)) of Bart Borchers and armed violence (720 ILCS 5/12--4(a),

33A--2 (West 2002)) directed toward Tony Bryson. The trial court imposed consecutive prison
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terms of 23 years for the attempted murder and 15 years for the armed violence. The court ordered

defendant to serve 85% of the 38-year aggregate term.

The evidence at trial indicated that defendant stabbed Borchers and Bryson during a New

Year's Eve party at the home of Pat Schifter. The defense theory was that defendant acted in

self-defense. Defendant arrived at the party with his girlfriend, Jamie Draper, and her friend,

Latosha "Nicky" Cowell. There was conflicting evidence as to whether the partygoers ingested

cocaine, marijuana, and large amounts of alcohol. Draper and defendant began arguing soon after

they arrived, and Cowell saw Draper kissing Borchers while defendant was outside talking with

someone else. Schifter and Bryson eventually asked defendant, Draper, and Cowell to leave, but

Draper refused. Cowell overheard Borchers and Draper agree to check into a motel. Borchers and

Bryson then confronted defendant in the kitchen and ordered him to leave. Defendant said he would

leave with "the girls," but Borchers said "no." At trial, the parties disagreed on the details of the

altercation that followed, but there was no question that defendant obtained a steak knife from a

kitchen drawer and cut Borchers and Bryson several times.

On direct appeal to this court, defendant argued that he was entitled to a new trial because

(1) the prosecutor indoctrinated the jury during voir dire, (2) the trial court erroneously admitted

certain hearsay testimony, and (3) the prosecutor improperly argued that society had an interest in

convicting defendant. We rejected each of defendant's arguments and affirmed his convictions on

June 28, 2004. People v. Pineda, 349 Ill. App. 3d 815 (2004).

On April 4, 2005, defendant filed a pro se petition for postconviction relief. He alleged,

among other things, that trial counsel was ineffective for failing to question Borchers about a prior

conviction of battery and failing to argue that the conviction supported defendant's position that his
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conduct was justified as self-defense. In this appeal, defendant does not raise any of the other claims

set forth in the postconviction petition.

On July 1, 2005, the trial court entered a written order summarily dismissing defendant's

petition as frivolous and patently without merit. As to the ineffective assistance of counsel claim,

the court stated as follows:

"[Defendant] claims that his counsel knew of a prior record for domestic battery and

decided not to use it 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 type that could be used

for impeachment. It is impossible under these circumstances to say if this would have

amounted to ineffective assistance. *** Moreover, [defendant] does not establish any failure

of the State to disclose Borchers' criminal record. [Defendant] does not establish that a

conviction actually existed, what it entailed, or whether it could have been used for

impeachment even if a conviction existed."

ANALYSIS

On appeal, defendant argues that the trial court erred in summarily dismissing his

postconviction claim of ineffective assistance of counsel. Defendant urges us to remand the cause

for an evidentiary hearing on the merits. The State argues alternative bases on which to affirm the

summary dismissal. The State contends that (1) defendant waived the allegation because he failed

to raise it on direct appeal; (2) defendant failed to supplement his affidavit with sufficient evidentiary

support that Borchers had a prior conviction of battery that could have been used for impeachment

at trial; and (3) even if the prior conviction existed, the claim of ineffective assistance is frivolous

and patently without merit because trial counsel's decision to omit the conviction from evidence was
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a matter of trial strategy and did not prejudice defendant. We affirm the summary dismissal, based

on the State's third argument.

The Post-Conviction Hearing Act (Act) establishes a procedure for determining whether a

criminal defendant was convicted in substantial violation of his or her constitutional rights. 725

ILCS 5/122--1(a) (West 2004). Proceedings under the Act are commenced by the filing of a petition

in the circuit court in which the conviction occurred. 725 ILCS 5/122--1(b) (West 2004). The

petition must identify the proceeding in which the conviction occurred, state the date of the contested

final judgment, and clearly identify the alleged constitutional violations. 725 ILCS 5/122--2 (West

2004). In addition, the petition must be both verified by affidavit (725 ILCS 5/122--1(b) (West

2004)) and supported by "affidavits, records, or other evidence" (725 ILCS 5/122--2 (West 2004)).

If such "affidavits, records, or other evidence" are unavailable, the petition must explain why. 725

ILCS 5/122--2 (West 2004).

At the first stage of a postconviction proceeding in a noncapital case, the trial court, within

90 days of the filing and docketing 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 patently without merit. 725 ILCS 5/122--2.1(a)(2) (West 2004). "A postconviction petition is considered frivolous or patently without merit if the petition's allegations, taken

as true, fail to present the gist of a meritorious constitutional claim." People v. Collins, 202 Ill. 2d

59, 66 (2002); People v. Gaultney, 174 Ill. 2d 410, 418 (1996). Our review of the trial court's

dismissal of a postconviction petition pursuant to section 122--2.1(a)(2) of the Act is de novo.

People v. 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.
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Because more often than not the defendant will be filing the petition pro se (People v. Porter,

122 Ill. 2d 64, 70-75 (1988)), the defendant's burden at the first stage is lower than at stages later in

the proceedings, when the defendant is assisted by counsel. The purpose is to give indigent

defendants a meaningful opportunity to be heard. Porter, 122 Ill. 2d at 74. Consequently, the

supreme court has declared that the Act requires that a pro se petition present only the gist of a

constitutional claim. People v. Boclair, 202 Ill. 2d 89, 99 (2002). The "gist" standard is a "low

threshold." Gaultney, 174 Ill. 2d at 418. Although a "gist" is something more than a bare allegation

of a deprivation of a constitutional right (People v. Prier, 245 Ill. App. 3d 1037, 1040 (1993)), it is

something less than a completely pled or fully stated claim (Edwards, 197 Ill. 2d at 245). Therefore,

to set forth the "gist" of a constitutional claim, the pro se defendant " 'need only present a limited

amount of detail.' " Edwards, 197 Ill. 2d at 245, quoting Gaultney, 174 Ill. 2d at 418. The defendant

need not construct legal arguments or cite to legal authority (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 the necessary affidavits, records, 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.

In this appeal, 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 defendant the

right to effective assistance of counsel. See U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8. The

purpose of this guarantee is to ensure that the defendant 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). The
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ultimate focus of the inquiry is on the fundamental fairness of the challenged proceedings.

Strickland, 466 U.S. at 696, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069. However, there is a strong

presumption of outcome reliability, so to prevail, a defendant must show that counsel's conduct "so

undermined the proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result." Strickland, 466 U.S. at 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

an objective standard of reasonableness; and (2) counsel's error prejudiced the defendant. 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. at 2064. A court need not decide whether counsel's performance was deficient before

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, but for counsel's unprofessional errors, the result of the proceeding

would have been different." 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 undermine confidence in the outcome."

Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. The prejudice component of

Strickland entails more than an "outcome-determinative test"; rather, the defendant must show that

deficient performance of counsel rendered the result of the trial unreliable or the proceeding

fundamentally unfair. People v. Richardson, 189 Ill. 2d 401, 411 (2000).

In this 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 battery; and (2) trial
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counsel was ineffective for failing to introduce evidence of the conviction and argue that defendant

acted in self-defense because Borchers had violent tendencies.

When the theory of self-defense is raised, evidence of the victim's aggressive and violent

character may be offered for two reasons: (1) to show that the defendant's knowledge of the victim's

violent tendencies affected the defendant's perceptions of and reactions to the victim's behavior; and

(2) to support the defendant's version of the facts where there are conflicting accounts of what

happened. People v. Lynch, 104 Ill. 2d 194, 199-200 (1984). Under the first approach, Borchers'

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

approach, defendant's knowledge is irrelevant.

The State concedes that defendant properly raised the theory of self-defense. However, the

State points 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 because defendant was not entitled to the admission of a prior conviction, he

cannot establish that the outcome of the trial would have been different. Assuming arguendo that

Borchers had a prior conviction of battery and that the trial court would have admitted it under

Lynch, we nevertheless conclude that the outcome of the trial would not have been different and that

therefore defendant has failed to establish the prejudice prong of Strickland.

Even if a prior conviction of battery were used to discredit Borchers, the testimony of the

other victim, Bryson, would have been unimpeached. Bryson corroborated Borchers' testimony, and

therefore, any attempt to undermine Borchers' version of events would likely have been futile. To

establish prejudice, defendant must show that "there is a reasonable probability that, but for counsel's
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unprofessional errors, the result of the proceeding would have been different." See Strickland, 466

U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Taking every factual allegation in defendant's

postconviction petition as true, we conclude that defendant cannot show that there is "a probability

sufficient to undermine confidence in the outcome" that the result of the proceeding would have been

different if counsel had attempted to impeach Borchers with a prior conviction. Strickland, 466 U.S.

at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

Defendant cites Edwards in arguing that "in the context of a claim of ineffective assistance

of counsel, it is 'unreasonable to place a burden on a pro se defendant to demonstrate the merits of

his hypothetical appeal.' " Edwards, 197 Ill. 2d at 254. Defendant cites this premise and People v.

Shevock, 353 Ill. App. 3d 361, 365 (2004), for the proposition that "a pro se postconviction

petitioner is not required to prove Strickland's 'prejudice' prong at stage one" to survive summary

dismissal.

Shevock filed a postconviction petition, and at the first stage of proceedings the trial court

summarily dismissed it as frivolous and patently without merit. Shevock, 353 Ill. App. 3d at 362.

The Appellate Court, Fourth District, affirmed the summary dismissal, holding that Shevock's

petition was "so vague, so conclusory, and so utterly bereft of any factual detail whatsoever that it

falls short of the liberal pleading standards of Boclair and Edwards." Shevock, 353 Ill. App. 3d at

362. In the context of affirming the summary dismissal, the Fourth District set forth a lengthy

discussion of the pleading standards of Edwards. The Shevock court commented on Edwards as

follows:

"To allege, in its entirety, a claim of ineffective assistance of counsel, the defendant

in Edwards would have had to allege not only his attorney's substandard performance (see
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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 attorney's refusal to file an appeal--but he also had to

allege a reasonable probability that the result in his case would have been different had his

attorney filed the appeal (see Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at

2068). Alleging prejudice would have entailed 'demonstrat[ing] the merits of his

hypothetical [postplea motion and] appeal.' Edwards, 197 Ill. 2d at 254 ***. The defendant

alleged no facts establishing prejudice, and thus his claim was incomplete: it was merely the

'gist' of a claim. Edwards, 197 Ill. 2d at 245 ***. But the 'gist' of a claim was all the

Post-Conviction Hearing Act (725 ILCS 5/122--2 (West 2002)) required at the first stage of

the postconviction proceeding (Edwards, 197 Ill. 2d at 244 ***), and he had stated the 'gist'

by alleging at least one factual element, namely, the attorney's substandard performance by

refusing to file an appeal (Edwards, 197 Ill. 2d at 242 ***). Given that factual allegation,

summary dismissal of the petition was premature. The petition was not 'so completely

lacking in substance that it [was] frivolous or patently without merit.' Edwards, 197 Ill. 2d

at 257 ***. On its face, the petition had potential merit: the defendant was well on his way

to stating a viable claim of ineffective assistance of counsel." Shevock, 353 Ill. App. 3d at

365. 

Defendant interprets this dicta in Shevock as barring the summary dismissal of a

postconviction petition due to the petitioner's failure to allege prejudice 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 presents the distinct issue of

whether a petition pled in detail is nevertheless frivolous and patently without merit because the
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factual allegations could never support the claim. This distinction undermines Shevock's

persuasiveness.

Furthermore, if we were to adopt defendant's position, we would essentially grant all

postconviction petitioners the right to an evidentiary hearing on a claim of ineffective assistance of

counsel so long as they simply alleged any de minimis error of counsel. Announcing such a rule

would undermine the purpose of section 122--2.1(a)(2) of the Act, which authorizes the summary

dismissal of claims that are frivolous or patently without merit.

Also, we note that one district of the state appellate court is not always bound to follow the

decisions of other districts, even though there may be compelling reasons to do so when addressing

factually similar cases. In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 398 (1992). We

are not compelled to follow Shevock, which was issued by the Fourth District.

Most importantly, we question whether Shevock is good law. In a supreme court case that

postdates Shevock, a postconviction petitioner alleged the ineffective assistance of counsel, and our

supreme court affirmed the summary dismissal of the petition under section 122--2.1(a)(2) of the

Act, based on the petitioner's failure to meet the prejudice prong of Strickland. People v. Robinson,

217 Ill. 2d 43, 63 (2005). In Robinson, the defendant argued that his appellate counsel was

ineffective for failing to argue that a witness's out-of-court statement to police that the defendant was

one of the shooters was inadmissible hearsay. Robinson, 217 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 "appellate counsel's failure to raise the

issue was not an error and did not prejudice defendant," as must be established under Strickland.
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(Emphasis added.) Robinson, 217 Ill. 2d at 63. Robinson is directly on point, and we follow it

rather than Shevock.

In agreement with Robinson, the appellate court has reached the same result in several

subsequent cases. See, e.g., People v. Barcik, 365 Ill. App. 3d 183, 191 (2006) ("[h]ere, even

assuming counsel was deficient for not calling defendant's fiancée [to testify], defendant's

[postconviction] claim would still fail because defendant cannot establish prejudice"); People v.

Williams, 364 Ill. App. 3d 1017, 1027 (2006) (dismissal of petition at first stage was appropriate

because "defendant has failed to state the gist of a meritorious claim that counsel's failure to

investigate his fitness and request a fitness hearing prejudiced him"); People v. Phyfiher, 361 Ill.

App. 3d 881, 887 (2005) (where trial counsel agreed to continuances that tolled the speedy trial

period, the summary dismissal of a postconviction petition alleging ineffective assistance was

nevertheless appropriate, because "[h]ad trial counsel not agreed to the continuances, the record does

not reflect the outcome of trial or sentencing would have been different"). Thus, we may affirm the

summary dismissal of defendant's postconviction claim of ineffective assistance of counsel because

he cannot meet the prejudice prong of the Strickland test.

For the preceding reasons, the judgment of the circuit court of Lake County is affirmed.

HUTCHINSON and GILLERAN JOHNSON, JJ., concur.