People v. Kane

2013 IL App (2d) 110594

5 N.E.3d 737

379 Ill.Dec. 1

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Timothy D. KANE, Defendant–Appellant.

No. 2–11–0594.

Appellate Court of Illinois, Second District.

Dec. 5, 2013.

Rehearing Denied April 3, 2014.

Alan D. Goldberg and Bryon M. Reina, State Appellate Defender's Office, Chicago, for appellant.

Michael G. Nerheim, State's Attorney, Waukegan (Lawrence M. Bauer and David A. Bernhard, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice McLAREN delivered the judgment of the court, with opinion.

¶ 1 Defendant, Timothy D. Kane, appeals from the trial court's orders dismissing his amended petition for relief from judgment, which was brought pursuant to section 2–1401 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2–1401 (West 2010)), and his petition for postconviction relief, brought pursuant to the Post–Conviction Hearing Act (Act) (725 ILCS 5/122–1 et seq. (West 2010)). We affirm.

¶ 2 I. BACKGROUND

¶ 3 After entering an open plea of guilty to one charge of escape (720 ILCS 5/31–6(c) (West 2004)) filed motions to reconsider his sentence, for new counsel, and to withdraw his guilty plea. He also filed a pro se amended motion, dated November 19, 2007, to withdraw his guilty plea and vacate his sentence, in which he alleged that he had received ineffective assistance of counsel.

¶ 4 Central to defendant's postjudgment filings was a transcript of the grand jury testimony of Lake County sheriff's deputy Raymond Gilbert. The transcript was one of several grand jury transcripts the State presented in aggravation at sentencing, and defendant had stipulated that, if called at trial, the officers would have testified to the information contained in the transcripts. Before the grand jury, Gilbert had testified that defendant resisted as Gilbert and Deputy Paavilainen attempted to arrest him. When asked whether defendant “picked you up and threw you on the ground,” Gilbert answered, “Yes.” He also testified that defendant placed his hand on Paavilainen's holster and touched the gun's handle. Both Gilbert and Paavilainen sustained injuries. Defendant argued that Gilbert's testimony was not supported by his police report and that the State misrepresented the evidence, because defendant had not picked up Gilbert or thrown him.

¶ 5 After a hearing on December 10, 2007, the trial court denied all of defendant's postjudgment motions, and defendant appealed. This court remanded the cause for compliance with Illinois Supreme Court Rule 604 (d) (eff. July 1, 2006). People v. Kane, No. 2–07–1274, 381 Ill.App.3d 1150, 359 Ill.Dec. 289, 966 N.E.2d 610 (2008) (unpublished order under Supreme Court Rule 23).

¶ 6 On August 15, 2008, defendant filed a motion to withdraw his guilty plea and a supplemental motion to reconsider his sentence. As in his original motion to reconsider, defendant alleged, among other things, that the State “embellished officer testimony in the sentencing hearing” in its use of Gilbert's grand jury testimony. After a hearing, the trial court denied the motions, and defendant appealed on September 17, 2008.

¶ 7 On March 26, 2009, defendant filed a pro se petition under section 2–1401 of the Code, alleging that the transcript of Gilbert's grand jury testimony contained what the State should have known was “false perjured testimony.” Defendant alleged that he had brought this matter to the attention of the court and his trial counsel during the December 10, 2007, hearing on his motion to reconsider. He also alleged that he received ineffective assistance from his trial counsel because counsel failed to investigate the matter.

¶ 8 Defendant attached to his section 2–1401 petition the transcript of a deposition given by Deputy Gilbert in September 2008 in the course of a civil case in federal court. When asked whether, in fact, defendant had picked him up and thrown him to the ground, as Gilbert had testified before the grand jury, he answered, “No. I believe I misinterpreted the question as when Timothy Kane carried us—when I say—we were holding on to [ sic ] him and he dragged or carried us out to the front is what I was saying yes to.” When asked if he actually saw defendant's hand on Paavilainen's holster or gun handle, Gilbert stated that he had not; he had learned those facts in a conversation with Paavilainen.

¶ 9 The trial court dismissed the section 2–1401 petition on the State's motion, and defendant appealed the dismissal. This court consolidated both of the appeals in People v. Kane, 404 Ill.App.3d 132, 343 Ill.Dec. 888, 935 N.E.2d 1116 (2010), in which we affirmed the trial court's judgment in the direct appeal but vacated the dismissal of the section 2–1401 petition and remanded that cause for further proceedings.

¶ 10 In January 2011, defendant filed a pro se amended section 2–1401 petition, again seeking relief based on the trial court's use at his sentencing hearing of Gilbert's grand jury testimony, which allegedly contained “perjury/misinformation” and “double hearsay allegations.” In addition, defendant filed a pro se postconviction petition under the Act in March 2011, in which he argued that “testimony and factors in aggravation used to seek a more severe sentence can be proved to be false and/or perjured, making it not worthy to be believed or used in sentencing.” Defendant alleged that he had not received a fair sentencing hearing because of the use of Gilbert's grand jury testimony and that his trial counsel failed to investigate the potential variances and call a known witness, Mitchell Saunders, who would have refuted Gilbert's testimony.

¶ 11 Following a hearing at which no further evidence was presented, the trial court dismissed with prejudice defendant's amended section 2–1401 petition. The court later summarily dismissed defendant's postconviction petition as frivolous and patently without merit. Defendant now appeals from both of those orders.

¶ 12 II. ANALYSIS

¶ 13 Defendant first contends that the trial court erred in dismissing his amended section 2–1401 petition. Section 2–1401 provides for relief from final orders and judgments after 30 days but before 2 years from entry. 735 ILCS 5/2–1401 (West 2010); Rockford Financial Systems, Inc. v. Borgetti, 403 Ill.App.3d 321, 323, 342 Ill.Dec. 691, 932 N.E.2d 1152 (2010). A section 2–1401 proceeding is a new proceeding, not a continuation of the case that resulted in the judgment that it challenges. Kane, 404 Ill.App.3d at 139, 343 Ill.Dec. 888, 935 N.E.2d 1116. It is a civil remedy that extends to both civil and criminal cases and is subject to the usual rules of civil practice. Id. A section 2–1401 petition provides a forum in a criminal case in which to correct all errors of fact occurring in the prosecution of a cause, unknown to the petitioner and the court at the time that judgment was entered, which, if then known, would have prevented its rendition. People v. Haynes, 192 Ill.2d 437, 461, 249 Ill.Dec. 779, 737 N.E.2d 169 (2000). However, it is not designed to provide a general review of all trial errors or to substitute for a direct appeal. Id. A section 2–1401 petition may not be used to obtain relief for issues previously raised at trial or in other collateral proceedings. Id.

¶ 14 “In general, to be entitled to relief pursuant to section 2–1401, a petitioner must affirmatively set forth specific factual allegations supporting[:] (1) the existence of a meritorious defense or claim; (2) due diligence in presenting that defense or claim to the trial court in the original action; and (3) due diligence in filing the section 2–1401 petition for relief.” Rockford Financial Systems, Inc., 403 Ill.App.3d at 323–24, 342 Ill.Dec. 691, 932 N.E.2d 1152.

¶ 15 Both defendant and the State acknowledge the conflict between panels of this court regarding the appropriate standard of review applicable to section 2–1401 proceedings. See, e.g., Rockford Financial Systems, Inc., 403 Ill.App.3d 321, 342 Ill.Dec. 691, 932 N.E.2d 1152 (abuse of discretion); Mills v. McDuffa, 393 Ill.App.3d 940, 332 Ill.Dec. 519, 913 N.E.2d 114 (2009) ( de novo ). However, we need not address the standard of review because, under either standard, we would affirm.

¶ 16 Defendant's amended section 2–1401 petition sought relief based on the State's use of Gilbert's grand jury testimony in aggravation at defendant's sentencing hearing, describing the testimony as “perjury/misinformation” and alleging that it contained “double hearsay.” Defendant alleged in his original section 2–1401 petition, filed in March 2009, that “[d]uring the December 10, 2007 Reconsideration Hearing,” he “brought this matter to the Courts [ sic ] attention and Defense Counsel (John Bailey) failed to investigate the matter.” During that hearing (actually while arguing regarding his motion for new counsel), defendant argued to the court:

“We had agreed to grand jury testimony, stipulated testimony of an officer's testimony at a grand jury proceeding where the officer had said that I had thrown him to the ground, but I believe that my attorney should of [ sic ] got those officers in the court to dispute their testimony because both of the officers that were in the hotel room, which this case was only used as an aggravating factor in the escape case. Both of those officers' original testimonies of that hotel room, neither one of the officers said anybody got thrown in that hotel room. And then the State not only said that I threw the officer, but he said I picked the officer up and threw him across the room like I was superhuman.”

¶ 17 As we have stated, a section 2–1401 petition may not be used to obtain relief for issues previously raised at trial or in other collateral proceedings. See Haynes, 192 Ill.2d at 461, 249 Ill.Dec. 779, 737 N.E.2d 169. Clearly, in 2007, more than a year before he filed his initial section 2–1401 petition, defendant raised in the trial court the issue of the...