Find Legal Information

SIXTH DIVISION
September 30, 2004

JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Following a jury trial, defendant Whitaker Phyfiher was convicted of vehicular hijacking,aggravated possession of a stolen motor vehicle, and possession of a stolen motor vehicle. Defendant was sentenced for vehicular hijacking, with the other convictions merged, to 18 yearsin the Illinois Department of Corrections as a mandatory Class X offender due to two previousconvictions for robbery, a Class 2 felony. 730 ILCS 5/5-5-3(c)(8) (West 2000).

On appeal defendant's attorney filed a brief and motion to withdraw pursuant to Anders v.California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). Copies of the brief andmotion were sent to defendant and he was advised that he could submit any points in support ofhis appeal. He did not respond. Defendant's appointed counsel on appeal was allowed towithdraw representation and we affirmed defendant's conviction. People v. Phyfiher, No. 1-02-3287 (2003) (unpublished order pursuant to Supreme Court Rule 23).

Defendant filed a pro se post-conviction petition alleging the following: (1) defendant wasnot proven guilty beyond a reasonable doubt; (2) trial counsel was ineffective for failing toexercise defendant's right to a speedy trial and for failing to call witnesses at sentencing; and (3)defendant was denied due process by the denial of his motion for a directed finding on thevehicular hijacking charge. The court dismissed the petition finding the issues raised by petitionerto be "frivolous and patently without merit." Defendant appeals the summary dismissal of hispost-conviction petition.

FACTUAL BACKGROUND

On March 9, 2000, at approximately 1 p.m., Dennis Nannenga, a delivery man, walked outof a small store in the area of 524 West 71st Street in the City of Chicago and observed his Fordvan driving past him. He ran to the passenger door, opened it, and yelled for the driver to stop. The driver increased speed while Nannenga continued to hold on to the door handle.

Chicago Police Officer John Deheer observed Nannenga holding on to the door of the vanand chased the speeding van. After the van made a sharp turn, Nannenga fell onto the street and agreen car struck the front passenger side of the van. The defendant jumped out of the van andbegan running. Officer Deheer ordered him to stop, but defendant continued to run. OfficerDeheer jumped over fences and ran through alleys before catching the defendant. At that point,defendant hit Officer Deheer in the chest. Officer Deheer tackled defendant and then placed himunder arrest.

Detective Steven Konow Mirandized and interviewed the defendant at the police station. Defendant admitted to driving the van while a white man jumped on the passenger side, hangingon to the door. Defendant indicated he tried to shake the man off by driving side to side. Defendant noticed a squad car with its siren activated and tried to get away; however, aftercrashing into another car, he jumped from the van and fled. He was caught and handcuffed to afence by the officer chasing him. The jury found defendant guilty and he was sentenced to 18years in prison for vehicular hijacking. 720 ILCS 5/18-3 (West 2000). On direct appeal, thiscourt granted defendant's appointed counsel's motion to withdraw representation and affirmed hisconviction. Defendant filed a post-conviction petition, which was summarily dismissed. Ourreview of the petition is de novo. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).

POST-CONVICTION HEARING ACT

The Post-Conviction Hearing Act (Act), (725 ILCS 5/122-1 et seq. (West 2000)),provides the mechanism by which criminal defendants may challenge their convictions orsentences for violations of federal or state constitutional law. People v. Tenner, 175 Ill. 2d 372,377 (1997). In a noncapital case, the Act provides a three-stage procedure for post-convictionrelief. People v. Boclair, 202 Ill. 2d 89, 99 (2002). Various sections of the Act provide guidancefor each stage. At stage one, the trial court, without input from the State, examines the petitiononly to determine if the petition pleads a constitutional deprivation unrebutted by the record,rendering the petition neither frivolous nor patently without merit. 725 ILCS 5/122-2.1(a)(2), (b)(West 2000); Boclair, 202 Ill. 2d at 99. Section 122-2.1 provides guidelines for resolution of apetition at the first stage. 725 ILCS 5/122-2.1 (West 2000).

If the petition is not dismissed at stage one, it proceeds to stage two, where section 122-4of the Act provides for the appointment of counsel for an indigent defendant who wishes counselto be appointed. 725 ILCS 5/122-4 (West 2000). At stage two, pursuant to section 122-5, theState has the opportunity to answer or move to dismiss the petition (725 ILCS 5/122-5 (West2000)), and the circuit court determines whether the petition alleges a substantial showing of aconstitutional violation. Coleman, 183 Ill. 2d at 381. Sections 122-4 and 122-5 provideguidelines for resolving a second-stage post-conviction petition. At stage one and stage two, thecircuit court resolves pleading questions. Coleman, 183 Ill. 2d at 385. Under first-stageprocedure, as provided by section 122-2.1, or under second-stage procedure, as provided bysection 122-5, the circuit court is foreclosed from engaging in any fact-finding because all well-pleaded facts not rebutted by the record are to be taken as true at stage one and stage two of thepost-conviction process. Coleman, 183 Ill. 2d at 380-81.

If the petition is not dismissed at stage two, it proceeds to stage three for an evidentiaryhearing. Section 122-6 provides guidelines for resolution of a petition at stage three. 725 ILCS5/122-6 (West 2000). At stage three, the circuit court resolves questions of disputed fact. Anevidentiary hearing on the petition is required when the allegations of the petition, supported bythe trial record and the accompanying affidavits, demonstrate a substantial violation of aconstitutional right unrebutted by the record. People v. Mitchell, 189 Ill. 2d 312, 322 (2000).

ANALYSIS

Consistent with the terms of the Act and the purpose of the first stage, we addresswhether the petition was properly dismissed. The trial court summarily dismissed defendant'spetition. On appeal defendant argues that dismissal was improper because it was based on the"procedural ground of waiver rather than on the claim's substantive merits."

Waiver raises questions of procedural compliance not properly the subject of first-stageconsideration. People v. McGhee, 337 Ill. App. 3d 992, 995 (2003). Waiver does not addressthe question of whether a claim is frivolous or without merit but, rather, constitutes a proceduralbar to defendant's right to prevail on a claim regardless of its substantive merit. McGhee, 337 Ill.App. 3d at 995. Unlike waiver, res judicata can be the basis for first-stage dismissal. People v.Etherly, 344 Ill. App. 3d 599, 613-15 (2003). "If the allegation was raised and ruled upon, then itis rebutted by the record, rendering it frivolous or patently without merit and subject to first-stagedismissal based on res judicata. If the allegation was not raised and ruled upon, then it is notrebutted by the record, thereby surviving first-stage dismissal based on res judicata." Etherly,344 Ill. App. 3d at 615.

Application of res judicata in terms of issues previously litigated substantively does notpresent questions of procedural compliance, questions of fact, or matters outside the recordfrequently implicated by waiver and procedural default. Etherly, 344 Ill. App. 3d at 613. Rather,application of res judicata, in terms of issues previously litigated, substantively resolves thequestion of whether a petition is frivolous or patently without merit. Etherly, 344 Ill. App. 3d at613-14.

As recently recognized in Boclair regarding the first stage, "At this initial stage of theproceedings, *** the court should only determine whether the petition alleges constitutionaldeprivations. The process at the summary review stage measures a petition's substantive virtuerather than its procedural compliance." (Emphasis added.) Boclair, 202 Ill. 2d at 102; see alsoBoclair, 202 Ill. 2d at 129 (McMorrow, J., specially concurring) (" 'Only' means only"). Inmeasuring the "substantive virtue" of the petition, the issue is whether the petition states aconstitutional deprivation that is substantively unrebutted by the record, rendering the petitionneither frivolous nor patently without merit. Etherly, 344 Ill. App. 3d at 614. The petition mayvery well allege a constitutional deprivation; however, if that allegation is rebutted by the record

then the petition lacks "substantive virtue" or merit and first-stage dismissal is allowed under theterms of the Act. Etherly, 344 Ill. App. 3d at 614.

Regarding whether a first-stage petition is frivolous or patently without merit, section122-2.1(c) of the Act specifically provides that the court may examine not only the court file, butany action taken by an appellate court. Such examination of the record is designed to assist thecircuit court in determining whether the petition states a constitutional deprivation substantivelyunrebutted by the record rendering the petition neither frivolous nor patently without merit asprovided by section 122-2.1(a)(2). Our review of the record, as provided by section 122-2.1(a)(2), demonstrates the trial court's dismissal in the instant case was proper.

We note, in the instant case, regarding the allegations related to the sufficiency of theevidence, the trial court not only based first-stage dismissal on waiver, but made a further findingthat "the issues raised and presented by petitioner are frivolous and patently without merit." Infact, after addressing each allegation raised in the petition, the written order dismissing thepetition provides in its conclusion that "Based upon the foregoing discussion, the court furtherfinds that the issues raised and presented by petitioner are frivolous and patently without merit." As reflected by the record, the trial judge's conclusion that the issues raised by petitioner werefrivolous and patently without merit was correct.

Regarding defendant's conviction for vehicular hijacking, he contends he was not provenguilty beyond a reasonable doubt and his due process right was violated by the court's failure todirect a verdict in his favor on that charge. Vehicular hijacking occurs when a person does thefollowing: (1) takes a motor vehicle, (2) from the person or immediate presence of another, (3) bythe use of force or by threatening the imminent use of force. 720 ILCS 5/18-3 (West 2000).

Defendant relies on People v. Cooksey, 309 Ill. App. 3d 839, 847 (1999), in support of hisargument that he was not proven guilty beyond a reasonable doubt because the victim was not inthe immediate presence of his car when defendant stole the victim's car. In Cooksey, defendantdemanded car keys from the victim when she was a distance of 25 feet from her car. The Cookseycourt reversed the defendant's conviction for vehicular hijacking because the State failed to provethat the defendant had stolen the car while the victim was in the immediate presence of her car. Cooksey, 309 Ill. App. 3d at 848. In the factual context of the instant case, Cooksey is notapplicable.

In the instant case, while defendant was in the process of stealing the victim's car, thevictim ran toward his van, grabbed the passenger door handle, and yelled for the defendant tostop. Defendant, aware of the victim, admitted to Detective Konow that he tried to shake him offby driving side to side. Defendant drove 60 miles an hour and swerved in the street to shake offthe victim. Defendant stole the car while the victim was not only in the presence of his car, butphysically holding on to the handle of his car as the vehicular hijacking was in progress. Therecord directly rebuts the defendant's allegations that he was not proved guilty beyond areasonable doubt and that his due process right was violated by the court's failure to direct averdict in his favor on the charge of vehicular hijacking. These allegations are substantivelyrebutted by the record, rendering the allegations frivolous and patently without merit undersection 122-2.1(a)(2).

Defendant further alleges that he was denied effective assistance of trial counsel becausecounsel allowed his 120-day statutory right to a speedy trial to lapse and counsel failed to call hisfamily members to testify at the sentencing hearing. A defendant under both the United Statesand Illinois Constitutions has a due process right to the effective assistance of counsel in acriminal prosecution. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I,