People v. Dominguez

851 N.E.2d 894

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ramon J. DOMINGUEZ, Defendant-Appellant.

No. 2-03-1016.

No. 2-03-1212.

Appellate Court of Illinois, Second District.

June 27, 2006.

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Jed H. Stone, John Curnyn, Stone & Associates, Waukegan, for Ramon J. Dominguez.

Michael J. Waller, Lake County State's Attorney, Waukegan, Martin P. Moltz, Deputy Director, Barry W. Jacobs, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Justice CALLUM delivered the opinion of the court:

Following a jury trial, defendant, Ramon J. Dominguez, was convicted of first-degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 1998)) and sentenced to 28 years' imprisonment. On direct appeal, we affirmed. People v. Dominguez, 331 Ill. App.3d 1006, 266 Ill.Dec. 97, 773 N.E.2d 1167 (2002) (Dominguez I). Defendant then filed a postconviction petition, which the trial court summarily dismissed. Following the court's refusal to hear his motion to reconsider, defendant appealed, arguing that the court erred in dismissing his petition. We reversed and remanded, on the ground that the petition stated the gist of a claim of ineffective assistance of counsel. People v. Dominguez, 356 Ill. App.3d 872, 884, 291 Ill.Dec. 982, 824 N.E.2d 1232 (2005) (Dominguez II). However, we questioned whether the petition would survive but for the fact that, at that time, res judicata was an invalid basis for summary dismissal. See Dominguez II, 356 Ill.App.3d at 884, 291 Ill.Dec. 982, 824 N.E.2d 1232, citing People v. Murray, 351 Ill.App.3d 219, 221, 286 Ill.Dec. 452, 813 N.E.2d 1145 (2004). Subsequently, in People v. Blair, 215 Ill.2d 427, 442, 294 Ill.Dec. 654, 831 N.E.2d 604 (2005), the supreme court held that res judicata and forfeiture were valid bases for summary dismissal. Thus, the court directed us to vacate our judgment in Dominguez II and to reconsider it in light of Blair. People v. Dominguez, 216 Ill.2d 703, 296 Ill.Dec. 104, 834 N.E.2d 909 (2005). After receiving the parties' supplemental briefs on the impact of Blair, we vacate our judgment in Dominguez II and affirm the dismissal of defendant's petition.

I. FACTS

In Dominguez I, we rejected defendant's arguments that, inter alia, his trial attorneys were ineffective for (1) failing to recommend that defendant submit a jury instruction on the lesser included offense of involuntary manslaughter; and (2) failing to move for a fitness hearing before trial. Dominguez I, 331 Ill.App.3d at 1014-15, 1017, 266 Ill.Dec. 97, 773 N.E.2d 1167. Subsequently, on June 5, 2003, defendant filed a timely postconviction petition. The petition claimed that defendant's trial attorneys were ineffective for (1) failing to tender or recommend that defendant tender a jury instruction on the lesser included offense of involuntary manslaughter; (2) failing to have the alleged murder weapon independently examined (3) failing to use an interpreter when discussing with defendant the possibility of tendering the lesser included offense instruction; and (4) failing to investigate defendant's mental health. Additionally, the petition claimed that defendant was denied a fair trial because the trial court did not issue sua sponte the lesser included offense instruction, and that the State violated its obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by not disclosing that defendant was taking psychotropic medications.

On August 5, 2003, the trial court summarily dismissed the postconviction petition as frivolous and patently without merit. Specifically, the court ruled that defendant's trial counsel was not ineffective, because (1) the failure to tender the lesser included offense instruction was the result of an "all-or-nothing" trial strategy decided upon by defendant and his counsel; (2) the failure to have the weapon independently examined was a matter of trial strategy, and defendant did not provide an affidavit of a potential witness or an explanation for its absence; (3) the alleged need for an interpreter conflicted with the record and the court's own observations of and interactions with defendant, all of which demonstrated that defendant was able to communicate effectively with his attorneys; and (4) the claim as to counsel's failure to investigate defendant's mental health was not supported by any evidence that the court did not already consider when it determined, on defendant's posttrial motion for a fitness hearing, that there was no bona fide doubt about defendant's fitness. Additionally, the court ruled that its failure to give the lesser included offense instruction sua sponte was not erroneous, because one was not tendered. Finally, the court ruled that defendant's claim that the State violated its obligation under Brady lacked merit because there was no evidence that defendant was unaware of his being medicated or that he could not remember being given drugs. To the contrary, the court found, defendant identified the drugs he ingested, and he detailed their effects.

On August 27, 2003, defendant submitted to the trial court a pro se notice of appeal from the dismissal of his postconviction petition. On September 4, 2003, interpreting defendant's submission as a request that a notice of appeal be filed on his behalf, the court directed the clerk to file one. The same day, the clerk filed a notice of appeal (No. 2-03-1016), which was amended on September 17. Also on September 4, however, defendant filed a motion to reconsider the dismissal of his petition. The motion asserted that the court had applied the wrong standard and sought to incorporate into the petition some Department of Corrections (DOC) medical records that allegedly constituted new evidence pertaining to defendant's fitness. Attached to the motion were an affidavit of one of defendant's trial attorneys, who stated, inter alia, that an interpreter was not used to advise defendant of his right to a lesser included offense instruction, and an affidavit of defendant's priest, who stated that defendant's trial attorneys had ignored the priest's concerns that defendant was unable to understand his attorneys.

On October 1, 2003, the trial court denied defendant's request for a hearing on his motion to reconsider. The court indicated that it could not hear the motion, because the motion was filed within the 90-day period allowed for the court to review the postconviction petition without input from any party. On October 24, 2003, defendant filed a timely notice of appeal (No. 2-03-1212) from the court's refusal to hear the motion. We consolidated defendant's appeals.

II. JURISDICTION

Before proceeding to the merits of this case, we must address our jurisdiction. An appellate court has a duty to consider its jurisdiction and to dismiss an appeal if jurisdiction is lacking. Ferguson v. Riverside Medical Center, 111 Ill.2d 436, 440, 96 Ill.Dec. 47, 490 N.E.2d 1252 (1985); Gilkey v. Scholl, 229 Ill.App.3d 989, 992, 172 Ill.Dec. 120, 595 N.E.2d 183 (1992). Even if the parties do not raise the issue, we must determine our jurisdiction (Carlson v. Powers, 225 Ill.App.3d 410, 413, 167 Ill.Dec. 625, 587 N.E.2d 1240 (1992)) prior to deciding the merits of an appeal (Steel City Bank v. Village of Orland Hills, 224 Ill.App.3d 412, 416, 166 Ill.Dec. 667, 586 N.E.2d 625 (1991)).

On September 4, 2003, defendant filed a notice of appeal from the dismissal of his postconviction petition and a motion to reconsider that dismissal. It is now settled that a defendant may move to reconsider the summary dismissal of his postconviction petition. Blair, 215 Ill.2d at 451, 294 Ill.Dec. 654, 831 N.E.2d 604. Here, however, the trial court suggested that defendant's motion was untimely. We disagree.

The trial court indicated that the motion to reconsider was untimely because it was filed within the 90-day period allowed for the court to review the postconviction petition without input from any party. See 725 ILCS 5/122-2.1(a) (West 2002). The court, however, appears to have miscounted. Indeed, defendant's September 4, 2003, motion was filed 91 days after defendant's June 5, 2003, petition. Thus, assuming that a motion to reconsider may not be filed within the 90-day period, defendant's motion was not untimely on that basis.

Further, we note that defendant filed his motion to reconsider within 30 days of the dismissal. The summary dismissal of a postconviction petition is a final judgment in a civil proceeding. 725 ILCS 5/122-2.1(a)(2) (West 2002); People v. Wilson, 37 Ill.2d 617, 619-20, 230 N.E.2d 194 (1967). A party may move to reconsider a final judgment in a civil proceeding within 30 days of the entry of that judgment. 735 ILCS 5/2-1203(a) (West 2002); see also In re J.D., 317 Ill.App.3d 445, 448, 251 Ill.Dec. 110, 739 N.E.2d 1043 (2000). Therefore, defendant's motion was timely.

As a result of defendant's timely motion to reconsider, however, the notice of appeal from the dismissal of defendant's postconviction petition, and the amended notice, must be stricken. Although postconviction proceedings are civil (Wilson, 37 Ill.2d at 619-20, 230 N.E.2d 194), appeals therefrom shall be in accordance with the rules governing criminal appeals (134 Ill.2d R. 651(d)). According to those rules, defendant's timely motion nullified the notice of appeal and the amended notice that were filed before the disposition of the motion. 188 Ill.2d R. 606(b); see People v. Willoughby, 362 Ill.App.3d 480, 482, 298 Ill.Dec. 690, 840 N.E.2d 803 (2005). Therefore, appeal No. 2-03-1016, the appeal from the dismissal of defendant's petition, is dismissed.

Nonetheless, we have jurisdiction in appeal No. 2-03-1212, the appeal from the refusal to hear defendant's motion to reconsider. Further, in that appeal, we may review the dismissal of defendant's postconviction petition. Although the notice of appeal specifically assigns error solely in the refusal to hear the...