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NO. 4-02-0189

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JUSTICE McCULLOUGH delivered the opinion of the court:

The State appeals from the order of the circuit courtof Pike County granting defendant's petition for relief fromjudgment pursuant to section 2-1401 of the Code of CivilProcedure (Code) (735 ILCS 5/2-1401 (West 2000)). We reverse.

On November 19, 1998, the trial court found defendantto be a sexually dangerous person pursuant to the IllinoisSexually Dangerous Persons Act (Act) (725 ILCS 205/0.01 through12 (West 1998)). On appeal, this court affirmed the order ofcommitment (People v. Lawton, No. 4-98-1018 (July 20, 1999)(unpublished order under Supreme Court Rule 23)). On August 17,2000, defendant filed a petition for relief from judgmentpursuant to section 2-1401 of the Code. Defendant argued he wasdenied effective assistance of counsel. Following a hearing, thetrial court granted defendant's petition for relief fromjudgment, finding "ineffective assistance of counsel existed inthe area of [defense counsel's] failure to object or to contestor to provide counsel involving the issue of demonstratedpropensities." This appeal followed.

The State first argues that a petition for relief fromjudgment pursuant to section 2-1401 is not an appropriatepleading for the review of ineffectiveness of counsel.

Section 2-1401 establishes a process by which a defendant may seek relief from a judicial order more than 30 daysafter its entry. In a proceeding under section 2-1401, a trialcourt may vacate a judgment obtained by duress or fraud, or whereby some excusable mistake or ignorance of a party and withoutnegligence on his part he has been deprived of a defense which,if known to the court, would have prevented the judgment. However, it has long been held that proceedings under section 2-1401 do not provide the appropriate forum in which a defendantmay raise contentions as to competency of counsel. People v.Anderson, 31 Ill. 2d 262, 264, 201 N.E.2d 394, 395 (1964); Putnamv. People, 408 Ill. 582, 585-86, 97 N.E.2d 841, 843 (1951); Hallv. People, 402 Ill. 478, 481, 84 N.E.2d 418, 420 (1949); Peoplev. Pinkonsly, 331 Ill. App. 3d 984, 987, 772 N.E.2d 855, 857(2002); People v. Smith, 176 Ill. App. 3d 132, 136, 530 N.E.2d1104, 1107 (1988).

The purpose of a petition under section 2-1401 is tobring before the trial court facts not appearing in the recordwhich, if known to the court and petitioner when judgment wasentered, would have prevented its entry. In re Charles S., 83Ill. App. 3d 515, 517, 404 N.E.2d 435, 437 (1980). The petitionis addressed to errors of fact, not law. Thus it has been heldthat a petition under section 2-1401 is not a proper vehicle tocollaterally attack alleged denials of constitutional rights. Charles S., 83 Ill. App. 3d at 517, 404 N.E.2d at 437. Further,it is not a proper means of raising issues such as whether adefendant was properly admonished as to the consequences of aplea of guilty or whether a defendant had incompetent counsel. Charles S., 83 Ill. App. 3d at 517-18, 404 N.E.2d at 437. In thepresent case, defendant raises no factual issues. Defendantargues he was denied effective assistance of counsel, a matternot the proper subject of a section 2-1401 petition. The trialcourt erred in granting defendant's petition for relief fromjudgment.

Defendant argues he has no "means of bringing trialcounsel's ineffectiveness to the attention of the court." Defendant correctly states that the Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-8 (West 2000)) is not available topersons attacking their commitment under the Act. People v.Lindsey, 45 Ill. 2d 115, 117, 256 N.E.2d 808, 809 (1970). Defendants found to be sexually dangerous persons pursuant to theAct, through direct appeal, can assert ineffectiveness by trialcounsel. See People v. Johnson, 322 Ill. App. 3d 117, 749 N.E.2d402 (2001); People v. Kastman, 309 Ill. App. 3d 516, 722 N.E.2d1202 (2000); People v. Dinwiddie, 306 Ill. App. 3d 294, 715N.E.2d 647 (1999).

Moreover, we reject defendant's argument on the merits. The trial court granted defendant's petition for relief fromjudgment, finding "ineffective assistance of counsel existed inthe area of [defense counsel's] failure to object or to contestor to provide counsel involving the issue of demonstrated propensities." Ineffective assistance of counsel claims are judgedunder the now familiar standard set forth by the United StatesSupreme Court in Strickland v. Washington, 466 U.S. 668, 80 L.Ed. 2d 674, 104 S. Ct. 2052 (1984). To establish ineffectiveassistance of counsel, a defendant must first demonstrate thathis defense counsel's performance was deficient in that "counselmade errors so serious that counsel was not functioning as the'counsel' guaranteed the defendant by the [s]ixth [a]mendment."Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at2064. In so doing, a defendant must overcome the strong presumption that the challenged action or inaction of counsel was theproduct of sound trial strategy and not of incompetence. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at2065. Second, a defendant must demonstrate a reasonable probability that, but for defense counsel's deficient performance, theresult of the proceeding would have been different. Strickland,466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Bothprongs of the Strickland test must be satisfied before a defendant can prevail on a claim of ineffective assistance of counsel.People v. Coleman, 183 Ill. 2d 366, 397-98, 701 N.E.2d 1063, 1079(1998).

Section 1.01 of the Act provides:

"All persons suffering from a mental disorder, which mental disorder has existed for aperiod of not less than one year, immediatelyprior to the filing of the petition hereinafter provided for, coupled with criminal propensities to the commission of sex offenses,and who have demonstrated propensities towardacts of sexual assault or acts of sexualmolestation of children, are hereby declaredsexually dangerous persons." 725 ILCS205/1.01 (West 1998).

In People v. Pembrock, 62 Ill. 2d 317, 321-22, 342 N.E.2d 28, 30,(1976), the court construed this language as requiring proof ofthree separate elements: "(1) the existence of a mental disorderfor more than one year; (2) the existence of criminal propensities to the commission of sex offenses; and (3) the existence ofdemonstrated propensities toward acts of sexual assault or actsof sexual molestation of children." It is clear, therefore, thatthe statute requires more than the proof of mere "propensity"; italso requires that the State prove that the defendant has "demonstrated" this propensity. The State must prove at least one actof or attempt at sexual assault or sexual molestation. People v.Allen, 107 Ill. 2d 91, 105, 481 N.E.2d 690, 697 (1985). InPeople v. Hancock, 329 Ill. App. 3d 367, 381, 771 N.E.2d 459, 469(2002), this court found that "[t]he State has satisfied thisburden by introducing verified records of [defendant's] convictions in Virginia and Maryland."

In the present case, the State asked that the trialcourt "take judicial notice of the 1987 case," in which defendantpleaded guilty to sexually assaulting his stepdaughter. Defensecounsel stated that "my position is the law provides that you canconsider for purposes of this hearing previous acts, previousconvictions, so with respect to the Court taking judicial noticeof that I don't have any objection." The trial court did not errin taking judicial notice of the 1987 case. It then follows thatdefense counsel's statement that there was no objection to thetrial court's ruling does not suggest ineffective assistance ofcounsel. Defendant has not shown that a reasonable probabilityexisted that the outcome of his trial would have been differenthad defense counsel objected. Because no prejudice resulted,defense counsel did not deny defendant the effective assistanceof counsel. See In re Ottinger, 333 Ill. App. 3d 114, 118, 775N.E.2d 203, 207 (2002) ("failure of defendant's counsel to make afutile objection does not constitute fundamentally deficientperformance").

For the reasons stated, we reverse the trial court'sjudgment.

Reversed.

MYERSCOUGH, P.J., and KNECHT, J., concur.