No. 3--06--0508
Filed October 2, 2008 CORRECTED OPINION
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 21st Judicial Circuit,
) Kankakee County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 00--CF--70
)
SHAWN PETRENKO, )
) Honorable Clark E. Erickson,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE SCHMIDT delivered the opinion of the court:
The defendant, Shawn Petrenko, was found guilty following a
jury trial of first degree murder and residential burglary, in
violation of sections 9--1 and 19--3 of the Criminal Code of 1961
(the Code) (720 ILCS 5/9--1, 19--3 (West 2000)). He was sentenced
to one term of natural life for murder and a consecutive term of 10
years for residential burglary. This appeal arises from the
dismissal of defendant's postconviction petition that the circuit
court of Kankakee County found to be frivolous and without merit.
Defendant argues that the circuit court erred in finding that he
failed to allege the gist of a constitutional claim in his
petition. Defendant also alleges that it was error to sentence him
to a 10-year term of imprisonment that runs consecutively to his
term of natural life.
BACKGROUND
On March 3, 2000, defendant was indicted on four counts of
first degree murder, one count of armed robbery, and one count of
residential burglary. Following a jury trial, defendant was found
guilty of one count of first degree murder and one count of
residential burglary. Defendant appealed, claiming that he was
denied a fair trial because the prosecutor misstated the evidence
during closing argument and that the trial court erred in admitting
a hammer into evidence. Finding harmless error, this court
affirmed in an unpublished order (People v. Petrenko, No. 3--07--
0507 (April 25, 2005) (unpublished order under Supreme Court Rule
23). The supreme court denied defendant's petition for leave to
appeal. People v. Petrenko, 216 Ill. 2d 720, 839 N.E.2d 1033
(2005). Subsequently, on March 16, 2006, defendant filed a
postconviction petition, claiming ineffective assistance of counsel
at both the trial and appellate proceedings. The circuit court of
Kankakee County found defendant's petition to be frivolous and
without merit and dismissed it in the first stage of the
postconviction proceedings. This appeal followed.
Defendant's postconviction petition alleged that his trial
2
counsel was constitutionally ineffective for failing to file a
motion for a Franks hearing contesting the validity of a search
warrant. Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S.
Ct. 2674 (1978). In support of this allegation, he claims that the
officer who applied for the warrant presented facts to the court
with a reckless disregard for the truth. He further alleged that
his appellate counsel was ineffective on direct appeal for failure
to file an ineffective assistance of counsel claim against trial
counsel. For the first time in this appeal, defendant also alleges
that his sentence is void and should be modified, claiming no
sentence is permitted to run consecutive to a natural life
sentence.
A review of the record indicates that on January 30, 2000, the
victim, Rubin Rivas, was found dead in his home, having been hit in
the head with a hammer or similar object nine times. The evidence
used to tie the defendant to the crime, as enumerated in the
affidavit and complaint for search warrant, included: a left-handed
white glove with red, blue, and white paint on it found in the
victim's house; a right-handed white glove with red, blue, and
white paint on it found in defendant's garbage; mail addressed to
the victim found in defendant's garbage; a metal object broken off
in the lock of the victim's back door; a broken key with the tip
missing found in defendant's garbage; and defendant's fingerprint
found on the victim's empty jar that normally contained the
3
victim's rent money: $450 in cash.
Based on this evidence, the circuit court issued a warrant,
and additional evidence was found in the defendant's home,
including the victim's brown change purse. Defendant was arrested,
tried by jury, found guilty, and sentenced to consecutive terms of
natural life and 10 years.
ANALYSIS
The first issue that defendant raises on appeal is whether it
was proper to summarily dismiss his postconviction petition as
frivolous and patently without merit.
We review the summary dismissal of a postconviction petition
de novo. People v. Coleman, 183 Ill. 2d 366, 388-89, 701 N.E.2d
1063, 1075 (1998). The Post-Conviction Hearing Act (the Act) (725
ILCS 5/122--1 et seq. (West 2006)) provides the opportunity for
criminal defendants to file a petition seeking relief if
substantial violations of their federal or constitutional rights
occurred. The Act sets forth a three-stage process. At the first
stage, a trial court may summarily dismiss a petition if it is
frivolous and patently without merit. 725 ILCS 5/122--2.1(a)(2)
(West 2006).
In order to avoid such a dismissal, a postconviction petition
must state the gist of a constitutional claim. People v. Edwards,
197 Ill. 2d 239, 757 N.E.2d 442 (2001). In evaluating a petition,
the trial court must construe all facts as true, unless
4
contradicted by the record. People v. Edwards, 197 Ill. 2d at 244.
A petition contradicted by the record is frivolous and patently
without merit. People v. Rogers, 197 Ill. 2d 216, 222, 756 N.E.2d
831, 834 (2001).
Here, defendant argues that his postconviction petition
alleged the gist of a constitutional claim: ineffective assistance
of counsel at both the trial and appellate levels.
In order to properly plead the gist of a constitutional claim
for ineffective assistance of counsel, a petition must allege facts
sufficient to meet both prongs of the Strickland test: first, that
counsel's performance fell below an objective standard of
reasonableness, and second, that the deficient performance resulted
in substantial prejudice to the defendant. People v. Gale, 376
Ill. App. 3d 344, 351, 876 N.E.2d 171 (2007). The same two-prong
Strickland test applies to both trial and appellate counsel alike.
People v. Richardson, 189 Ill. 2d 401, 412, 727 N.E.2d 362, 369
(2000). To show prejudice at either level, defendant must show to
a reasonable probability that his counsel's deficient performance
resulted in an unreliable result or a fundamentally unfair
proceeding. Richardson, 189 Ill. 2d at 411. Prejudice is not
shown merely by enumerating issues that appellate counsel did not
brief on appeal, especially nonmeritorious ones, as appellate
counsel need not brief every possible issue on appeal. People v.
Coleman, 168 Ill. 2d 509, 523, 660 N.E.2d 919, 927 (1996).
5
Although defendant brought a number of claims against both his
trial and appellate counsel in his petition for postconviction
relief, he raises only two on appeal. Defendant alleges that trial
counsel should have filed a motion contesting the validity of the
search warrant and that appellate counsel should have raised this
issue on direct appeal. Notably, if defendant's ineffective
assistance of counsel claim against trial counsel is
nonmeritorious, then clearly appellate counsel was not deficient
for refraining from addressing it. Coleman, 168 Ill. 2d at 523.
Therefore, we first examine defendant's claim against his trial
counsel.
Defendant's postconviction petition alleges that his trial
counsel should have challenged the search warrant because the
statements made by the police to procure the warrant showed a
reckless disregard for the truth. Specifically, the probable cause
affidavit stated that defendant's fingerprint was on the victim's
empty money jar and failed to state that defendant was often in the
victim's duplex. Defendant's petition alleges that had the officer
informed the court of the latter, the court would have given
minimal weight to the fingerprint and thus would not have found
probable cause to issue the warrant. On appeal, defendant also
claims that this reckless disregard for the truth was further
evinced by failure of the police to mention to the trial court that
the victim's mail found in defendant's garbage was at least six
6
months old.
For a judge to issue a warrant, a petitioning officer need
only show facts sufficient to demonstrate probable cause that the
premises to be searched contains evidence of a crime. People v.
McCarty 223 Ill. 2d 109, 153, 858 N.E.2d 15 (2006). Upon
defendant's substantial showing that the petitioning officer,
knowingly and with intentional disregard for the truth, made a
false statement necessary to such a finding of probable cause, the
trial court will grant a hearing on the validity of the warrant.
Franks v. Delaware, 438 U.S. 154, 155, 57 L. Ed. 2d 667, 672, 98 S.
Ct. 2674, 2676 (1978). In order to prevail at such a hearing,
commonly called a Franks hearing, the defendant must establish
perjury or reckless disregard for the truth by a preponderance of
the evidence and must show that without the false statements there
was insufficient evidence to demonstrate probable cause for a
search warrant. Franks v. Delaware, 438 U.S. at 156, 57 L. Ed. 2d
at 672, 98 S. Ct. at 2676.
Defendant alleges that the officer knew defendant had been
lawfully inside the victim's house only a few days prior to the
murder and that the officer purposely left out that information
when drafting his affidavit. Defendant contends that his lawful
presence explains his fingerprint, removing any implications that
would otherwise be afforded the fingerprint evidence. The State
maintains that defendant's lawful presence does not explain his
7
fingerprint on the money jar because a casual visitor would not
have handled it and, out of all of the victim's visitors, only
defendant's fingerprint was found on the money jar. The State
argues that, previous lawful entry or otherwise, defendant's
fingerprint on the money jar suggests that defendant might have
been involved and that evidence of the crime would be found in
defendant's home. We agree.
Defendant's lawful presence in the victim's house does not
negate probable cause to issue the search warrant. By the time the
search warrant was issued, the police had found matching gloves
with paint on them, one of which was found in the victim's
residence and the other in the defendant's garbage, and a metal
object found in the victim's lock, as well as a broken key found in
defendant's garbage. Even without defendant's fingerprint, the
above evidence, discussed in the affidavit, would be sufficient to
show probable cause that further evidence would be found within
defendant's residence. Therefore, even taking defendant's
suggestion as true, that the police officer was less than
forthcoming regarding defendant's presence in the house, we cannot
say that defendant would have been granted, let alone prevailed at,
a Franks hearing. The trial court could not have found by a
preponderance of the evidence that the officer showed a reckless
disregard for the truth based on the facts alleged.
Therefore, we find that defendant's petition fails to allege
8
sufficient facts to show that his trial counsel's representation
fell below an objective standard of reasonableness, the first prong
of Strickland. Nor has he shown prejudice as required by the
second prong of Strickland. We find the trial court properly found
that defendant's allegations of ineffective assistance of trial
counsel were frivolous and patently without merit. That is, the
allegations are rebutted by the record. See People v. Rogers, 197
Ill. 2d 216, 756 N.E.2d 831 (2001). Having found that defendant's
petition failed to allege facts sufficient to state the gist of a
constitutional claim for ineffective assistance of counsel against
his trial counsel, we need not address defendant's contention that
appellate counsel was also deficient for failing to address the
same issue.
Defendant's final claim on appeal concerns his consecutive
sentence terms. Defendant claims that, as a matter of law, they
are void and, as such, should be modified to run concurrently.
While defendant raises this issue for the first time on the appeal
of the dismissal of his postconviction petition, we will address it
as a void sentence can be attacked at any time. People v. Brown,
225 Ill. 2d 188, 199, 866 N.E.2d 1163, 1169 (2007).
Defendant, sentenced to one term of natural life and a
consecutive term of 10 years, bases his claim on People v. Palmer,
218 Ill. 2d 148, 843 N.E.2d 292 (2006), in which the Illinois
Supreme Court modified a sentence of multiple terms of natural life
9
from running consecutively to running concurrently. The Palmer
court held that imposing consecutive terms of natural life strays
from the legislative intent of section 5--8--4 of the Unified Code
of Corrections (750 ILCS 5/5--8--4 (West 2000)) and violates the
laws of nature as defendants have but one life to give. Palmer,
218 Ill. 2d at 163-64.
The First District Appellate Court interpreted Palmer very
broadly and expanded it further by holding that no sentence term of
any length can run consecutively to a term of natural life (People
v. Dixon, 366 Ill. App. 3d 848, 853 N.E.2d 1235 (2006)) and that
any sentence imposing a term of incarceration consecutive to a
natural life term is void. People v. Spears, 371 Ill. App. 3d
1000, 864 N.E.2d 758 (2007).
The Spears court relied entirely on Palmer. Spears, 371 Ill.
App. 3d at 1006-09. We note that the Palmer court's analysis of
the consecutive terms of natural life did not address the issue of
whether the sentence was void. Palmer, 218 Ill. 2d at 163-70. The
Palmer court merely stated it was error for the trial court to
impose consecutive terms of natural life. Palmer, 218 Ill. 2d at
169-70. Furthermore, as noted in Palmer, upholding consecutive
terms of natural life creates no prejudice to the defendant because
he will not serve one day more or less. Palmer, 218 Ill. 2d at
169. Therefore, although the Spears court inferred that the
sentence was void, we do not.
10
Whether a sentence is void is a jurisdictional question.
People v. Davis, 156 Ill. 2d 149, 155, 619 N.E.2d 750, 754 (1993).
A sentence delivered by a court without both subject matter
jurisdiction and personal jurisdiction is void. Davis, 156 Ill. 2d
at 156. A court with jurisdiction does not lose it merely for
making a mistake of law or fact. Davis, 156 Ill. 2d at 156. Thus,
a sentence given in error by a court with jurisdiction is not void.
People v. Ramirez, 361 Ill. App. 3d 450, 454, 837 N.E.2d 111
(2005).
In the instant case, the trial court had subject matter
jurisdiction and personal jurisdiction and, thus, had the authority
to sentence the defendant within statutory limits. The trial court
interpreted the correct statute, section 5--8--4, and imposed two
terms of imprisonment to run consecutively. At worst, the trial
court made a mistake of law and the defendant's sentence is in
error. Davis, 156 Ill. 2d at 156. Defendant's sentence is not
void. Defendant did not challenge the sentence in the trial court,
on direct appeal, or even before the trial court in his
postconviction petition. Defendant cannot challenge his sentence
for the first time on appeal of his postconviction petition. We
find this issue to be procedurally defaulted.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Kankakee County is affirmed.
11
Affirmed.
WRIGHT, J., concurs.
HOLDRIDGE, J., dissents.
People v. Shawn Petrenko, No. 3--06--0508 Filed October 2, 2008 put w/corrected opinion
JUSTICE HOLDRIDGE, dissenting:
I respectfully dissent. The majority concludes that the defendant failed to allege sufficient
facts to meet the Stickland test. I would agree with that conclusion, but I note that the conclusion is
irrelevant to the issue of whether the defendant’s post-conviction petition should have been
summarily dismissed. At the first stage of a Post-Conviction proceeding, the petitioner is not
required to allege sufficient facts to meet the Strickland test. He is merely required to state the "gist"
of a constitutional claim. People v. Edwards, 197 Ill. 2d 239, 245 (2001). Here, the petitioner stated
the "gist" of a claim by alleging at least one factual element, namely that his attorney failed to contest
the validity of the search warrant. That is a fact clearly established in the petition and supporting
affidavits. Why counsel failed to challenge the search warrant and, more importantly, what
prejudicial effect that failure had on the defendant’s case are not within the competence of a pro se
defendant to factually allege at the preliminary stage. Whether counsel’s performance was in fact
deficient, or whether the defendant was prejudiced can only be alleged after appointment of counsel .
Given the sufficient factual allegations made by the defendant at the first stage, summary dismissal
of the petition was premature. People v. Shevock, 353 Ill. App. 3d 361, 365 (2004).
I would find that the defendant has presented the gist of a claim sufficient to survive
summary dismissal and would remand for appointment of counsel who would then have the task of
alleging sufficient facts to meet the Strickland test.
12