People v. Pingelton

2022 IL 127680

215 N.E.3d 764

465 Ill.Dec. 559

The PEOPLE of the State of Illinois, Appellee,

v.John PINGELTON, Appellant.

Docket No. 127680

Supreme Court of Illinois.

Filed November 28, 2022.

Rehearing denied January 23, 2023

James E. Chadd, State Appellate Defender, Catherine K. Hart, Deputy Defender, and Martin J. Ryan and Edward J. Wittrig, Assistant Appellate Defenders, of the Office of the State Appellate Defender, of Springfield, for appellant.

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Katherine M. Doersch and Eric M. Levin, Assistant Attorneys General, of Chicago, of counsel), for the People.

JUSTICE NEVILLE delivered the judgment of the court, with opinion.

¶ 1 Petitioner, John Pingelton, challenges the second-stage dismissal of his postconviction petition for relief under the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2018)). Petitioner contends that he was deprived of his right to procedural due process because the circuit court of Sangamon County granted the State's motion to dismiss without giving him notice and an opportunity to respond. The appellate court affirmed, holding that the procedural due process violation relating to the dismissal of the petition was harmless error. 2021 IL App (4th) 180751, ¶¶ 32-34, 448 Ill.Dec. 818, 177 N.E.3d 1169. For the following reasons, we affirm the judgment of the appellate court.

¶ 2 I. BACKGROUND

¶ 3 A. Conviction and Appeal

¶ 4 Petitioner was charged with two counts of criminal sexual assault ( 720 ILCS 5/12-13(a)(1) (West 2004)) on K.S. and A.H., who were 16 years old at the time of the offense. The evidence at trial showed that on July 7, 2005, K.S. and A.H. were at petitioner's home, where he forcibly placed his penis in the vagina of K.S. and his fingers in the vagina of A.H. In addition, the State presented the testimony of Dr. Dennis Adams and Dr. Robert Sliwa, the emergency medicine physicians who examined the victims after the offenses.

¶ 5 Dr. Adams testified that he was board-certified in emergency medicine and had practiced as an emergency physician for 25 years. He also testified that he was familiar with the literature on sexual assault examinations and had examined approximately 20 victims of sexual assault in the course of his career. Dr. Adams performed a pelvic examination of A.H. on July 17, 2005, which revealed no evidence of vaginal trauma. However, based on his experience and the relevant literature, Dr. Adams opined that the absence of trauma was not inconsistent with A.H.’s allegation that petitioner inserted his fingers into her vagina. Dr. Adams explained that, in most of the sexual assault examinations he had performed, he did not find physical evidence of trauma.

¶ 6 On cross-examination, Dr. Adams testified that he had no opinion as to whether A.H. was sexually assaulted. He acknowledged that, in some of the other sexual assault examinations he had performed, he did find evidence of trauma but that was not always the case. He also acknowledged that he did not know the underlying facts of the prior cases in which he performed sexual assault examinations. He further acknowledged that he is not a gynecologist and had never used, or been trained to use, a colposcope, which he described as an instrument used to magnify findings during a pelvic examination.

¶ 7 Dr. Robert Sliwa testified that he was board-certified in emergency medicine and had examined more than 100 sexual assault victims in the course of his practice. He also testified that he was familiar with the literature concerning sexual assault examinations. Dr. Sliwa testified that he examined K.S. on July 27, 2005, but found no evidence of vaginal trauma. Based on his experience and the relevant literature, however, Dr. Sliwa opined that the absence of such trauma was not inconsistent with an allegation of sexual assault. He noted that, in the majority of cases in which an adult woman or postpubescent girl is sexually assaulted, no evidence of trauma is found. He further explained that K.S. reported that the assault occurred several weeks before his examination and, therefore, the trauma "would have cleared up" by the time he examined her. In addition, Dr. Sliwa testified that K.S.’s report of vaginal bleeding at the time of the assault did not affect his opinion.

¶ 8 On cross-examination, Dr. Sliwa testified that he had no opinion as to whether K.S. was sexually assaulted. He acknowledged that he is not a gynecologist but explained that he had received some training in the field, although not in the use of a colposcope. Dr. Sliwa agreed that the use of a colposcope during his examination of K.S. might have revealed evidence of trauma that was not visible to the naked eye. He also agreed that it is possible for evidence of trauma to be detected weeks after an assault.

¶ 9 The jury found petitioner guilty of both counts, and the trial court sentenced him to consecutive 10-year prison terms. The appellate court affirmed on direct appeal. People v. Pingleton , No. 4-07-0133, 352 Ill.Dec. 156, 953 N.E.2d 92 (2007) (unpublished order under Illinois Supreme Court Rule 23 ).

¶ 10 In December 2015, petitioner pro se filed a postconviction petition alleging, inter alia , that he received ineffective assistance of both trial and appellate counsel. With regard to his trial attorney, petitioner claimed that his counsel failed to object to the presentation of improper expert testimony by Dr. Adams and Dr. Sliwa. With regard to his appellate counsel, petitioner claimed that his attorney failed to raise that issue on direct appeal. The circuit court advanced the petition to the second stage and appointed counsel to represent petitioner.

¶ 11 In March 2016, the State filed a motion to dismiss petitioner's petition, arguing that it contained claims that were conclusory, meritless, waived, and barred by res judicata. The motion was served on petitioner's appointed counsel.

¶ 12 Almost two years later, in February 2018, postconviction counsel filed a motion to withdraw, which was supported by a memorandum addressing petitioner's claims and a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). In his motion to withdraw, postconviction counsel argued that the claims in petitioner's pro se petition could not be supported as a matter of law and that the record revealed no other meritorious issues to be asserted in postconviction proceedings. Regarding petitioner's contention that trial and appellate counsel were ineffective for failing to object to the opinion testimony by Dr. Adams and Dr. Sliwa, the motion noted that the record established that the prosecution had disclosed the victims’ medical records before trial. The motion further explained that both doctors had been properly identified as treating physicians during the trial because their consultation was conducted well before litigation and was for treatment purposes only. The motion explained that Illinois courts have permitted treating physicians to offer opinions during their testimony at trial because such opinions are a product of their observations rather than a contemplation of litigation.

¶ 13 Appointed counsel's Rule 651(c) certificate attested that he had consulted with petitioner in person and by mail to ascertain his contentions regarding the deprivation of his constitutional rights, examined the record of the proceedings of the trial and all appellate proceedings and postconviction pleadings, and had made all necessary amendments to the pro se postconviction petition or determined that there are no meritorious constitutional issues to be presented in the postconviction proceedings.

¶ 14 Petitioner filed two responses to counsel's motion to withdraw. In the first response, petitioner argued that counsel did not review his pro se claims or the record and failed to raise additional claims that petitioner had proposed. Petitioner further contended that, if the prosecution had disclosed the victims’ medical records before trial, then trial counsel was ineffective for failing to impeach the victims and treating physicians with purported discrepancies between the records and the witnesses’ testimony. Petitioner also reiterated his contention that trial counsel was ineffective for failing to object to presentation of the treating physicians as expert witnesses. Petitioner requested that the court allow appointed counsel to withdraw, permit him to amend his pro se petition, and advance the petition to the third stage.

¶ 15 In his second response, petitioner asserted that his petition presented claims of constitutional deprivations that warranted an evidentiary hearing, and he repeated his assertion that trial counsel was ineffective for failing to object to Dr. Sliwa testifying as an expert witness. He also argued that appointed postconviction counsel was ineffective and asked the court to advance his petition to the third stage.

¶ 16 Appointed postconviction counsel filed a reply, reiterating his conclusion that petitioner had no meritorious issues to be argued in postconviction proceedings.

¶ 17 On May 8, 2018, the circuit court made a docket entry indicating that the case was set for a "status" hearing the following day. At that hearing, the State and postconviction counsel appeared personally, and petitioner appeared via telephone. The circuit court first heard argument from the State on its motion to dismiss, during which the State said it would "adopt and incorporate all of the arguments that are contained within [postconviction counsel's motion to withdraw]." The State further argued that petitioner's trial attorney was not ineffective because he was able to elicit favorable testimony from the State's experts. Postconviction counsel did not respond to the State's arguments in support of the motion to dismiss.

¶ 18 The circuit court then addressed the motion to withdraw filed by postconviction counsel. In opposition to his appointed counsel's...