NO. 4-04-0007 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHANIEL JACKSON, Defendant-Appellant. ) ) ) ) ) ) ) ) Appeal from Circuit Court of Champaign County No. 02CF627

Honorable Jeffrey B. Ford, Judge Presiding.

JUSTICE APPLETON delivered the opinion of the court: Defendant, Nathaniel Jackson, appeals from the summary dismissal of his

pro se petition for postconviction relief. He makes two arguments: (1) we should dismiss the office of the State Appe llate Defender (OSAD) and allow defendant to represent himself in this appeal, and (2) the tria l court erred in summarily dismissing his petition, which stated the gist of a claim of ineffective assistance of trial counsel. We deny defendant's request to represent himself, and we affirm the trial court's judgment. I. BACKGROUND The State charged defendant with bur glary (720 ILCS 5/19-1 (West 2002)). Because of his criminal history, the offense was a Class X felony. See 730 ILCS 5/5-5-3(c)(8) (West 2002). At trial, a police officer, Jeff Creel, testified he went to Arrowhead Lanes at approximately 4:30 a.m. on March 25, 2002, in re sponse to a burglar alarm. He noticed a broken window. David Bolt, one of the owner s of the bowling alley, testified he came- 2 - to the scene and noticed that someone had pr ied open the cash registers and emptied them of $200 to $250 in cash. He also noticed the intruder had broken into some video games, destroyed two video cameras near the snack bar, and removed a ceiling tile in the women's bathroom. The police found def endant hiding in the drop ceiling. When defendant came down, they peered into t he ceiling and found a maroon backpack, which contained a pair of jeans, a knife, an ice pick, and $224 in cash. A videotape showed someone breaking the window and climbi ng into the building, and the gloves and backpack the intruder was wearing matched those that the police found on or near defendant's person. The jury found defendant guilty of burgl ary, and the trial court sentenced him to 28 years' imprisonment. On direct appeal, we affirmed the conviction and sentence. People v. Jackson , No. 4-02-0732 (March 30, 2004) (unpublished order under Illinois Supreme Court Rule 23). Defendant afterward filed a postconvicti on petition, which the trial court dismissed as frivolous and patently without merit. He appealed from the summary dismissal, and this is the appeal presently befor e us. Three times in the course of this appeal, defendant filed a pro se motion that we dismiss OSAD and allow defendant to represent himself. We denied those motions. OSAD has now filed a brief and a reply brief in defendant's behalf, in which it urges us to reconsider these rulings and grant defendant's motion to proceed pro se

. II. ANALYSIS A. Defendant's Request To Represent Himself Defendant argues (through his appointed counsel) that under Illinois- 3 - Supreme Court Rules 651(c) and 607 (134 Ill. 2d R. 651(c); Official Reports Advance Sheet No. 22 (October 30, 2002), R. 607, eff. September 30, 2002) as well as section 121-13(a) of the Code of Cr iminal Procedure of 1963 (Code) (725 ILCS 5/121-13(a) (West 2004)), he has the right to represent hims elf in this appeal. He cites cases which, according to him, stand for the proposition that "the right to appointed counsel in a post[]conviction proceeding pursuant to Rule 651( c) may be waived." People v. French , 210 Ill. App. 3d 681, 569 N.E. 2d 934 (1991); People v. Williams , 185 Ill. App. 3d 840, 541 N.E.2d 1175 (1989). He notes that the Supreme Court of Illinois has granted motions by indigent defendants to represent themselves in appeals from postconviction proceedings (People v. Harrison , 46 Ill. 2d 159, 161, 263 N.E. 2d 87, 88 (1970); People v. Korycki , 45 Ill. 2d 87, 89, 256 N.E.2d 798, 799 (1970); People v. Southwood , 49 Ill. 2d 228, 229, 274 N.E.2d 41, 42 (1971)) and that the United States Supreme Court has condemned the practice of forcing lawy ers upon criminal defendants (Faretta v. California , 422 U.S. 806, 834, 45 L. Ed. 2d 562, 581, 95 S. Ct. 2525, 2540-41 (1975)). Conceding that "Rule 651(c) can be read as implicitly affording a defendant the right to refuse appointment of counsel[,] as in Rule 607(a)," the State nevertheless argues that our refusa l to allow defendant to proceed pro se is correct

because the record does not show that his waiv er of appellate counsel is "voluntary and intelligent." The State distinguishes Faretta because that case concerned a criminal trial, whereas the present case concerns an appeal from a postconviction proceeding. In his reply brief, defendant observes that if he had requested to waive appointed counsel at trial , Rule 401(a) (134 Ill. 2d R. 401(a)) would have required the trial court to give him certain admonitions to ensure that the waiver was voluntary and- 4 - intelligent. He is aware of no authority, how ever, for requiring such admonitions if he requests to waive counsel on appeal from postconviction proceedings. He argues it would be "incongruous to now require [him] to proceed on appeal with appointed counsel, when he had no constitutional or st atutory right to appointed counsel, even if

he had requested it , at the filing stage." (Emphases in original.) Although criminal defendants have a sixt h-amendment right to represent themselves at trial (Faretta , 422 U.S. at 819, 45 L. Ed. 2d at 572, 95 S. Ct. at 2533), they have no federal constitutional right to self-representation on appeal (Martinez v. Court of Appeal of California , 528 U.S. 152, 154, 145 L. Ed. 2d 597, 602, 120 S. Ct. 684, 687 (2000)). In his brief, def endant makes a reasonable (though belated) argument that under Rules 651( d) and 607, he has the option of representing himself on appeal from the dismissal of his postconviction petition. Rule 651(d) provides: "The procedure for an appeal in a post[]conviction proceeding shall be in accordance with the rules governing criminal appeals, as near as ma y be." 134 Ill. 2d R. 651(d). Rule 607, which is a rule governing criminal appeals, states that if the trial court "determines that the defendant is indigent and [that the defendant ] desires counsel on appeal , the court shall appoint counsel on appeal." (Emphasis added.) Official Reports Advance Sheet No. 22 (October 30, 2002), R. 607(a), eff. S eptember 30, 2002. Thus, the appointment of counsel--and, arguably, the counsel's continuing tenure--is conditional on thedefendant's desire for such counsel. Also, if one interpreted Rule 651 to forbid selfrepresentation by indigent def endants, this interpretation might put Rule 651 at odds with section 121-13(a) of the Code, which conditions the appointment of OSAD on the indigent defendant's "desire[] [for] counsel on appeal" (725 ILCS 5/121-13(a) (West- 5 - 2004)). These are all, as we said, reasonabl e arguments, but the time for making these arguments was earlier, in the motions to proceed pro se . Illinois Supreme Court Rule 361(a) requires that such motions st ate not only "the relief sought" but also "the grounds therefor." 177 Ill. 2d R. 361(a). In his motions, the only authorities defendant cited that came close to being relevant were Faretta and Martinez , which we have already discussed, and People v. Bowman , 40 Ill. 2d 116, 123, 239 N.E.2d 433, 438 (1968), in which the supreme court stated: "It has been found to be reversible error to refuse a criminal defendant's timely request fo r self-representation." The supreme court made that statement, however, in the contex t of self-representation in a guilty-plea hearing (Bowman , 40 Ill. 2d at 118, 239 N.E.2d at 435), not self-representation in an appeal from a postconviction proceeding. In his motions, defendant never cited, for instance, Rule 651(d), Rule 607, or secti on 121-31(a) of the Code and never made the arguments grounded on those author ities that he is making now, in his brief. A reviewing court "is not simply a repositor y in which appellants may dump the burden of argument and research." People v. Chatman , 357 Ill. App. 3d 695, 703, 830 N.E.2d 21, 29 (2005). Without such argument and resear ch, "we [were] unable to say whether the motion[s] should [have been] allowed or not, and [they] *** therefore [had to be] overruled." People ex rel. Akin v. Kipley , 167 Ill. 638, 638, 48 N.E. 688, 688 (1897). The burden of persuasion was on the movant. In his brief, defendant admits that "what constitutes a valid waiver of postconviction appellate counsel *** is a question of first impression." He could not reasonably expec t us to answer that question without the benefit of a coherent argument and cita tion of relevant authorities.- 6 - At this time, the argument for self -representation comes too late. The attorneys have filed their briefs. To grant defendant's request to proceed pro se at this late date, we would have to issue a new briefing schedule, and defendant and the State

would have to draft and file new briefs. Even when defendants have a constitutional right to represent themselves, they must assert that right in a timely (and, we might add, effective) manner. Bowman , 40 Ill. 2d at 124, 239 N.E.2d at 438; Martinez , 528 U.S. at 162, 145 L. Ed. 2d at 607, 120 S. Ct. at 691. At this point in the appellate process, judicial efficiency outweighs defendant's inte rest in individual autonomy (see Martinez , 528 U.S. at 163, 145 L. Ed. 2d at 608, 120 S. Ct. at 692), and we deny his request to proceed pro se in this appeal. B. Alleged Ineffectiveness of Counsel To avoid summary dismissal, a postconviction petition must meet two requirements. First, it must state the gist of a constitutional claim. People v. Jones , 213 Ill. 2d 498, 504, 821 N.E.2d 1093, 1096 (2004). Second, the postconviction proceeding must be the earliest possible opportunity for asse rting that claim. A trial court should summarily dismiss a petition "where facts a scertainable from the record reveal the petition's claims have already been decided, wa ived, or forfeited." People v. Blair , 215 Ill. 2d 427, 430, 831 N.E.2d 604, 607 (2005). "[I] ssues that were raised and decided on direct appeal are barred from consi deration by the doctrine of res judicata ; issues that could have been raised, but were not, are considered waived." People v. Williams , 209 Ill. 2d 227, 233, 807 N.E.2d 448, 452 (2004). Defendant argues that his postconviction pet ition states the gist of a claim

of ineffective assistance of counsel. Allegedly, his counsel rendered ineffective- 7 - assistance in five ways. First, counsel failed to consult him before waiving the preliminary hearing. Second, counsel failed to ask him whether he wanted a bench trial instead of a trial by jury. Third, instead of asking defendant what his real reason was for being in the bowling alley at 4:30 a.m., c ounsel presented a defense that was untrue, namely, that defendant entered the bowling alley to seek shelter from the cold. Defendant alleged in his petition that he act ually was "high on cocaine and alcohol for three nights [straight,] without any sleep," and "d id not realize what [he] was real[l]y doing." The window of the bowling alley "was already broken," and his "cocaine addiction *** [led him] to enter into that br oken window[,] and[] [he] did not have control[] over [his] actions from that point." Fourth, counsel never consulted with defendant before sentencing to ascertain whether there were any mitigating factors. Fifth, counsel

failed to tender an instruction on the included offense of criminal damage to property. We considered and rejected the first two contentions on direct appeal. People v. Jackson , No. 4-02-0732, slip order at 11 (March 30, 2004) (unpublished order under Illinois Supreme Court Rule 23). Therefore res judicata bars those contentions. See Williams , 209 Ill. 2d at 233, 807 N.E.2d at 452. As for the third contention, defendant's alleged intoxication would have

made no difference in the verdict. Ineffectiv e assistance of counsel has two elements: (1) defense counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that the outcome of the case would have been

different but for defense counsel's subs tandard performance. People v. Young , 341 Ill. App. 3d 379, 383, 792 N.E.2d 468, 472 (2003). Effective January 1, 2002, Illinois no longer recognized voluntary intoxication as an excuse for criminal conduct. 720 ILCS- 8 - 5/6-3 (West 2004). "A person who is in an in toxicated or drugged condition is criminally responsible for conduct unless such condition is involuntarily produced and deprives him of substantial capacity either to apprec iate the criminality of his conduct or to conform his conduct to the requirements of law." 720 ILCS 5/6-3 (West 2004). It was not incompetence to refrain from asserti ng a defense that the law clearly negated. As for the fourth contention, defendant does not state what the mitigating

factors would have been. Without that informa tion, we have no basis for concluding that (1) any mitigating factors existed and (2) they would have made a difference in the sentence. See People v. Rodriguez , 313 Ill. App. 3d 877, 887, 730 N.E.2d 1188, 1196 (2000) ("a court may proceed directly to the second prong of the Strickland test and

need not examine effectiveness in the absence of prejudice"). As for the fifth contention, we find no reasonable probability that an

instruction on the included offense of crimi nal damage to property would have made any

difference in the outcome of this case. No rational jury would have found that defendant intended only to damage property. The evidenc e was overwhelming that he intended to steal the money in the cash registers and game machines. III. CONCLUSION For the foregoing reasons, we affirm the trial court's judgment.

Affirmed. TURNER, P.J., and MYERSCOUGH, J., concur.