Find Legal Information

Docket No. 83654-Agenda 2-September 1999.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 
RONALD KITCHEN, Appellant.

Opinion filed November 18, 1999.-Modified on denial of 
rehearing April 3, 2000.

CHIEF JUSTICE FREEMAN delivered the opinion of thecourt:

Following a trial in the circuit court of Cook County, a juryconvicted defendant, Ronald Kitchen, of five counts of murder. Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(1). The jury founddefendant eligible for the death penalty under section 9-1(b)(3) ofthe Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par.9-1(b)(3)) and further concluded, after hearing the evidence inaggravation and mitigation, that there were no mitigating factorssufficient to preclude the imposition of the death penalty. Thiscourt affirmed defendant's convictions and death sentence ondirect appeal, and the United States Supreme Court deniedcertiorari. People v. Kitchen, 159 Ill. 2d 1 (1994), cert. denied,513 U.S. 1020, 130 L. Ed. 2d 500, 115 S. Ct. 586 (1994).

Defendant thereafter filed a timely petition for relief pursuantto the Post-Conviction Hearing Act. 725 ILCS 5/122-1 (West1994). The circuit court denied relief, and this appeal followed. 134 Ill. 2d R. 651. We now vacate the circuit court's order denyingrelief and remand the matter for further proceedings.

BACKGROUND

Our opinion on direct appeal sets forth the details surroundingdefendant's convictions, and we will not repeat them here. Defendant stands convicted of the July 27, 1988, murders ofDeborah Sepulveda, Rose Marie Rodriguez, Sepulveda's twochildren, Peter Jr., and Rebecca, and Rodriguez's son, Daniel.

Following the completion of direct review proceedings,defendant filed a petition for post-conviction relief in the circuitcourt. The petition contained eight claims of ineffective assistanceof trial counsel, two claims of ineffective assistance of appellatecounsel, and one claim of cumulative error as a result of thealleged ineffectiveness of counsel. All but one of the claimsasserted against trial counsel concerned what counsel did not do,but ought to have done, in the course of his representation ofdefendant. These claims consisted of allegations concerningcounsel's failure to investigate, discover, and present certainevidence at both the pretrial and trial phases of the proceedings.The petition also alleged that trial counsel was ineffective byfailing to object to alleged hearsay testimony. In conjunction withthis claim, defendant asserted the ineffectiveness of his appellatecounsel for failing to raise the issue on direct appeal. Defendantfurther claimed that appellate counsel was ineffective becausecounsel failed to argue on direct appeal the fact that defendant'sright to counsel was not scrupulously honored by police during hisinterrogation. Attached to the petition were the affidavits of bothmembers of defendant's trial counsel team and various documentsobtained from the trial counsel's file, including police and medicalreports. The gist of the contentions raised in defendant's petitionis that trial counsel's decisions not to investigate the circumstancesof defendant's arrest and interrogation fell below objectiveprofessional standards and that defendant suffered prejudice as aresult. The petition's prayer for relief included a request thatdefendant be granted sufficient time and leave to amend andsupplement the petition in order to include additional claims, supporting affidavits, and factual material "as [defendant's]investigation continues."

On September 7, 1995, the circuit court conducted a statushearing on the petition. The assistant State's Attorney informedthe court that the State would "be filing [a] motion to dismiss" andwould serve defendant's counsel with it.⁽¹⁾ Defendant's attorneythen indicated to the court that defendant was under capitalsentence and that defendant would be "asking for time to file anamended petition." Counsel explained that he still had "someextensive investigation to do in this matter" and that the assistantState's Attorney had indicated that he had no objection to thisprocedure. The circuit court, thereafter, continued the cause untilDecember 7, 1995 at the agreement of the parties.

On November 7, 1995, defense counsel caused severalsubpoenas to be issued, including subpoenas for files from theChicago Police Department's Office of Professional Standards andInternal Affairs Division. Specifically, defense counsel requestedthe disciplinary records and files of six of the officers who hadbeen involved in defendant's arrest and interrogation. The State,along with the City of Chicago, moved to quash the subpoenas,arguing that the request was overly broad and that the informationrequested would prove arduous to amass and produce. At a statushearing on December 7, 1995, defendant's attorney tendered to thecourt an additional affidavit that counsel stated would support oneof defendant's claims of ineffective assistance of trial counsel. Defense counsel also indicated that he would like time to respondto the State's motion to quash in writing. The circuit courtcontinued the matter.

At a hearing on March 7, 1996, the parties agreed in opencourt that the defense subpoenas were overly broad. Defensecounsel stated that he would be willing to narrow the request sothat the State could more easily comply with it. Accordingly, thecircuit court ruled that the subpoenas, as drafted, were too broad. The court further indicated that it would entertain future discoveryrequests on June 6, 1996, a date agreed upon by the parties. OnMay 30, 1996, defendant filed a motion for discovery seeking theissuance of subpoenas in five areas in order to support his claimsof constitutionally ineffective assistance of trial counsel.According to counsel, these records would establish that trialcounsel's decision not to investigate and discover the recordsconstituted ineffectiveness because the material was readilyavailable at the time of trial. At the June 6, hearing, the assistantState's Attorney indicated that the State was not ready to proceed,and the court granted a continuance to September 5, 1996, to heardefendant's motion for discovery. On that date, the assistantState's Attorney served defense counsel with the State's objectionsto the defendant's motion for discovery. The matter was thencontinued to November 7, 1996.

When the parties reconvened in court on November 7, bothattorneys presented arguments on the motion for discovery and theobjections thereto. The court indicated that it would be preparedto rule on the motion after it had conducted an in camera reviewof certain Department of Corrections records that defendant hadrequested. The case was continued by agreement of the parties toNovember 19, 1996 for a final ruling as to the discovery requests.

On November 19, the court inquired if either defense counselor the assistant State's Attorney had additional arguments to makewith respect to the discovery issue. Both parties indicated that theydid not. The court then stated that it had reviewed defendant'spetition, along with the supporting affidavits and documentsattached to it and that "detailed oral arguments were heard *** onthis post-conviction petition on November 7, 1996." The courtthen denied all of the discovery requests and further found that"defendant's post conviction petition for relief sets out no valid orjust reasons why relief should be granted by this trial Judge. Therefore, defendant's petition is hereby denied."

At the conclusion of the court's rulings, defense counselimmediately pointed out that the matter was before the court solelyon a motion for discovery. Counsel explained that his arguments,up until that point in time, had only pertained to the discoveryissue and had not been directed at the substantive claims made inthe petition. Specifically, counsel noted that:

"[t]he arguments that we argued [last week] were notaddressing [sic] actually the claims that we had made inthe post conviction petition initially. The arguments weregoing to discovery concerning some of those issues andsome other issues we have yet to raise.

And we're taken completely by surprise that the rulingtoday is on the merits of the post-conviction petition. Wedid not address the merits in our argument.

* * *

I would ask the Court to reconsider the fact that we'retotally caught by surprise here. We thought we were goingto have time to amend this petition and then to have fullarguments of [sic] the Court."

Notwithstanding defense counsel's contentions, the trial judgecomplimented the defense team on what he characterized as "anexhaustive petition." The judge noted, however, that he hadreviewed the petition and its accompanying affidavits andsupporting documents "in great length" and that his actions wouldconstitute "a final order from this Court." The judge furtherstressed that he did not

"wish to deny or delay *** to participate actively in adelay [sic] that the Supreme Court has ruled on a numberof years ago. And I feel that I'm dragging my feet and Idon't like to do that."

Defense counsel then noted that the defense had appeared in courton every date set by the court and had not been dilatory in anyway. Counsel further noted that the defense team

"had no opportunity to know that [a dismissal] wascoming. [The defense has] had no opportunity to knowthat. *** No idea at all."

The trial judge then asked the State for its position on the matter. The assistant State's Attorney replied that the court had an"adequate basis to rule." The judge then ordered that"[d]efendant's post-conviction relief petition will be denied on itsmerits. Obviously an appealable order."

Defendant thereafter sought reconsideration and vacatur ofthe November 19, 1996, order. The circuit court denied themotion, and this appeal followed. During the pendency of thisappeal, defendant filed a motion in this court seeking a limitedremand for a new suppression hearing. We have taken the motionwith the case.

ANALYSIS

We begin our analysis with a review of the basic principlesassociated with proceedings under the Illinois Post-ConvictionHearing Act (the Act). 725 ILCS 5/122-1 et seq. (West 1994). TheAct provides a mechanism by which those under criminalsentence in this state can assert that their convictions were theresult of a substantial denial of their rights under federal and/orstate constitutional law. See 725 ILCS 5/122-1 (West 1994). Proceedings under the Act are commenced by the filing of apetition in the circuit court in which the original proceeding tookplace. The petition must clearly allege how the petitioner's rightswere violated. 725 ILCS 5/122-2 (West 1994). The scope of theproceedings is limited to constitutional matters that have not been,nor could have been, previously adjudicated. Any issues whichcould have been raised on direct appeal, but were not, areprocedurally defaulted (People v. Ruiz, 132 Ill. 2d 1, 9 (1989)),and any issues which have previously been decided by a reviewingcourt are barred by the doctrine of res judicata. People v. Silagy,116 Ill. 2d 357, 365 (1987). In cases where the death penalty hasbeen imposed, section 122-5 of the Act directs that the State shalleither answer or move to dismiss the petition. In the event that amotion to dismiss is filed and denied, the State must file an answerwithin 20 days after such denial. See 725 ILCS 5/122-5 (West1994). Under section 122-6, the court may receive proof byaffidavits, depositions, oral testimony or other evidence. See 725ILCS 5/122-6 (West 1994).

Although a post-conviction petitioner is not entitled to anevidentiary hearing as a matter of right, this court has repeatedlystressed that a hearing is required whenever the allegations setforth in the petition, as supported by the trial record oraccompanying affidavits, make a substantial showing of aconstitutional violation. People v. Coleman, 183 Ill. 2d 366, 381(1998); People v. Gaines, 105 Ill. 2d 79, 91-92 (1984). In makingthat determination, all well-pleaded facts in the petition are to betaken as true. Nonfactual and nonspecific assertions which merelyamount to conclusions are not sufficient to require a hearing underthe Act. Coleman, 183 Ill. 2d at 381. The requirement foraccompanying affidavits arises from the need to furnishinformation dehors the record that the petitioner did not haveavailable to him or her at the time of the original trial. See Peoplev. Reeves, 412 Ill. 555, 559-60 (1952). The dismissal of a post-conviction petition is warranted only when the petition'sallegations of fact-liberally construed in favor of the petitioner andin light of the original trial record-fail to make a substantialshowing of a constitutional violation. Coleman, 183 Ill. 2d at 382.We note that if the allegations contained in the petition are basedupon matters of record, no extrinsic evidence may be required. SeePeople v. Jones, 66 Ill. 2d 152, 157 (1977) (noting that a courtmay properly dismiss a post-conviction petition if the record ofproceedings at trial shows the petition to be nonmeritorious). Onthe other hand, when a petitioner's claims are based upon mattersoutside the record, this court has emphasized that "it is not theintent of the [A]ct that [such] claims be adjudicated on thepleadings." People v. Airmers, 34 Ill. 2d 222, 226 (1966); See alsoPeople v. Clements, 38 Ill. 2d 213, 216 (1967) (same). Factualdisputes raise issues that should be resolved at a hearing before thetrial court and "should be raised by answer rather than by motionto dismiss, assuming substantial constitutional questions areraised." Reeves, 412 Ill. at 559.

In view of the foregoing, we presume that, by its actions, thecircuit court dismissed defendant's petition without an evidentiaryhearing because defendant's allegations, even if taken as true,were insufficient as a matter of law to warrant relief under the Act.Such a decision is afforded plenary review on appeal. SeeColeman, 183 Ill. 2d at 387-88. Before we begin such a review,however, we must address defendant's challenge to the manner inwhich the circuit court heard and ruled upon his petition. Relyingon this court's decision in People v. Bounds, 182 Ill. 2d 1 (1998),defendant contends that the circuit court's denial of post-conviction relief without notice deprived him of procedural dueprocess.

In Bounds, we reversed a circuit court's order dismissing apost-conviction petition because the circuit court, at a statushearing and without prior notice, granted the State's motion todismiss. This court noted that the "trial court's discretion inresolving post-conviction petitions does not allow the court toconvert a status call to a hearing on the merits without notice tothe parties." Bounds, 182 Ill. 2d at 5. We, therefore, concluded thatthe procedure followed by the circuit court violated defendant'sright to procedural due process. Bounds, 182 Ill. 2d at 5.

Bounds compels the vacatur of the circuit court's order in thiscase. As noted above, at the time of the November 19, 1996,hearing, the parties were embroiled in a debate, not over thesufficiency of defendant's petition, but over the breadth andnecessity of his discovery requests. The November 19, 1996, courtdate was set so that the parties could learn of the circuit court'sresolution of the matter.⁽²⁾ Nevertheless, after denying all ofdefendant's discovery requests, the court went on to consider themerits of the petition and to deny all relief on a substantive basis. As in Bounds, defense counsel went to court prepared for one typeof proceeding, only to be surprised when the trial court, withoutprior notice, reached the merits of the petition and denied all post-conviction relief. The decision to deny the petition was madewithout notice to the parties and without the benefit of argumentfrom either defendant or the State. We, therefore, vacate the circuitcourt's order denying post-conviction relief and remand the causefor further proceedings consistent with this opinion and the Act.

This court, long ago, acknowledged that the Act should not beso strictly construed that a fair hearing be denied and the purposeof the Act, i.e., the vindication of constitutional rights, be defeated. See Reeves, 412 Ill. at 560. In vacating the circuit court'sjudgment, we today, as in Bounds, mean to send a clear messageto both bench and bar that the protection of a defendant's right toprocedural due process in post-conviction proceedings is of criticalimportance. We trust that such violations will not soon be repeatedin our courtrooms.

In light of our disposition of this appeal, we deny defendant'smotion for a limited remand without prejudice.

CONCLUSION

The circuit court's order denying defendant post-convictionrelief is vacated and the cause remanded to the circuit court forfurther proceedings consonant with this opinion.

Order vacated;
cause remanded.

1. ¹The motion was apparently filed on that same day.

2. ²In this regard, we note that the circuit court incorrectly stated thatit had heard "detailed arguments" on defendant's post-convictionpetition at the prior hearing. Our review of the transcripts from thathearing indicates that those "detailed arguments" concerned the natureand scope of defendant's discovery requests. Any reference to the meritsof the petition was directed solely to the discovery question upon whichthe parties disagreed.