People v. Smith

892 N.E.2d 55

383 Ill.App.3d 1078

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sirena SMITH, Defendant-Appellant.

No. 1-06-3384.

Appellate Court of Illinois, First District, Sixth Division.

June 20, 2008.

Rehearing Denied August 13, 2008.

Richard A. Devine, State's Atty. of Cook County (James Fitzgerald, Tasha-Marie Kelly, Brian Hodes and Shannan McFadden, Asst. State's Attorneys, of counsel), Chicago, IL, for Plaintiff-Appellee.

Michael J. Pelletier, Deputy Defender of Cook County (Emily S. Wood, Asst. Appellate Defender, of counsel), Chicago, IL, for Defendant-Appellant.

Presiding Justice McBRIDE, delivered the opinion of the court:

Defendant Sirena Smith appeals the trial court's dismissal of her successive postconviction petition, arguing that (1) the trial court erred in summarily dismissing her postconviction petition; (2) the prosecutor's input at the first stage of defendant's postconviction proceedings was error; (3) the trial court erred in assessing defendant a $90 filing fee and a $50 State's Attorney fee; and (4) the trial court's assessment of fees and costs violates defendant's constitutional rights of equal protection and due process.

In March 2001, defendant, through her attorney, participated in a Supreme Court Rule 402 (177 Ill.2d R. 402) conference with the State and the trial court. After the conference, defendant entered into a plea of guilty to one count of felony murder in the June 1997 death of Debbie Happ in exchange for a sentence of 48 years' imprisonment. The trial court questioned defendant about her decision to plead guilty. Specifically, the court discussed the rights defendant would be giving up and circumstances of her case. The court advised the defendant of the charge of murder and asked her if she understood the charge against her, which defendant indicated that she did. The trial court explained how a jury trial works and that by pleading guilty, defendant would be waiving a jury trial. Defendant stated that she understood what a jury trial was and had no questions about a jury trial. She then signed a jury waiver, which the trial court accepted. The court further described how a trial works and that in a trial, she would be presumed innocent. The court informed defendant that by pleading guilty, she was giving up her right to a trial, the right to confront witnesses and to call witnesses in her defense, the right to testify in her own defense, and the presumption of innocence. After asking defendant her age and how far she went in school, the trial court engaged in the following colloquy with defendant.

"THE COURT: Did anybody force you to plead guilty?

DEFENDANT SMITH: No.

THE COURT: Anybody threaten you to make you do it?

DEFENDANT SMITH: No.

* * *

THE COURT: Did anybody promise you anything —

DEFENDANT SMITH: No.

THE COURT: — to get you to plead guilty other than I said I would sentence you to 48 years in the penitentiary, other than that?

DEFENDANT SMITH: No.

* * *

THE COURT: Your lawyer, have you talked to your lawyer about your case?

DEFENDANT SMITH: Yes.

THE COURT: Are you satisfied with his representation?

DEFENDANT SMITH: Yes.

THE COURT: Do you understand that you have a right to continue to plead not guilty and to demand a trial? You can force the State to give you a trial on this charge.

DEFENDANT SMITH: Yes.

THE COURT: Are you under the influence of drugs or alcohol now?

DEFENDANT SMITH: No."

The State offered the following factual basis. On June 11, 1997, defendant and her boyfriend William Riley entered into an apartment located at 1454 W. Fargo in Chicago, with the intention to commit a burglary. They entered through the rear door using a crowbar. While in the apartment, defendant and Riley were confronted by Happ, who said they were not allowed to stay in the apartment and if they did not leave, she would call the police. As Happ started to walk to the front of the apartment, Riley grabbed her, dragged her into the bedroom and started to choke her. Defendant followed Riley and saw him choking Happ and tying Happ up on the bed.

Defendant got a telephone cord and gave that to Riley, who used it to bind Happ's hands behind her back. Riley stuffed some underwear in Happ's mouth and gagged her with a belt tied around her mouth. Riley also tied the bindings on Happ's hands to a radiator. Riley left the room and returned with the crowbar. He struck Happ in the head several times with the crowbar.

Defendant and Riley returned to the computer room and Riley took a portion of the computer. He placed it in a duffel bag bearing defendant's name. He also placed the crowbar in the bag. Defendant returned to the bedroom and took Happ's purse and a tape recorder. Defendant and Riley then left the apartment.

They went to the apartment of Robert Miller and tried to sell the computer. During the course of the police investigation, the duffel bag was recovered from Miller's apartment. The duffel bag contained the crowbar with blood on it as well as glass and paint chips. DNA testing was performed on the blood on the crowbar and it matched Happ's blood. Additionally, there was a hair in the bag consistent with the victim's hair. The glass and paint chips were consistent with the glass and the paint chips from the door of 1454 W. Fargo. Defendant was arrested and gave a court-reported statement detailing her involvement in the crime.

Defense counsel stipulated to the State's factual basis for the plea. The trial court asked defendant if, after everything it had said, she still wanted to plead guilty, and defendant responded that she did. The trial court then found that "defendant understands the nature of the charges against her, the possible penalties under the law, and her rights under the law." The court also found that defendant wished to waive those rights and enter a guilty plea. Additionally, defendant was sworn under oath and asked by the trial court if the State's facts were correct, and defendant responded that they were correct. She also identified the court-reported statement she gave.

Prior to sentencing, the trial court heard two victim impact statements, one each from Happ's father and brother. The court sentenced defendant to 48 years' imprisonment.

Defendant did not file a direct appeal. In September 2001, defendant filed a pro se postconviction petition alleging that her sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which was summarily dismissed. Defendant attached a letter to her petition in which she raised new claims of ineffective assistance of counsel based on her attorney's failure to properly defend her and she described her history of sexual abuse as a child, family issues and her fear of Riley. We granted appellate counsel's motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), and affirmed the summary dismissal. People v. Smith, 335 Ill.App.3d 1192, 297 Ill.Dec. 207, 836 N.E.2d 938 (2002) (unpublished order under Supreme Court Rule 23).

In August 2004, defendant filed a pro se petition for relief from judgment pursuant to section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 2004)) in which she alleged ineffective assistance of trial counsel. The trial court recharacterized her section 2-1401 petition as a successive postconviction petition before summarily dismissing it as frivolous and patently without merit. On appeal, based on the supreme court's decisions in People v. Pearson, 216 Ill.2d 58, 295 Ill. Dec. 621, 833 N.E.2d 827 (2005), and People v. Shellstrom, 216 Ill.2d 45, 295 Ill.Dec. 657, 833 N.E.2d 863 (2005), this court vacated the trial court's dismissal and remanded the case with instructions to allow petitioner an opportunity to withdraw or amend her pro se pleading. People v. Smith, No. 1-04-3321 (May 15, 2006) (unpublished order under Supreme Court Rule 23).

When the trial court considered the case on remand, it spoke with the assistant State's Attorney (ASA) present in the courtroom. The ASA was not assigned to defendant's case, but was familiar with it since it had been remanded. After reading the remand, the trial court stated, "I have to remand with [sic] instructions to allow the petitioner an opportunity to withdraw or amend the pro se pleading." The court commented that the postconviction petition would still be at the first stage and the ASA said that it would be a successive postconviction petition. The court ordered defendant to be brought to court. The ASA noted the next date and said, "We'll have someone here."

In September 2006, defendant appeared before the trial court. A different ASA was present in the courtroom. The court explained to defendant that it intended to recharacterize her section 2-1401 petition as a postconviction petition and gave her the opportunity to withdraw or amend the petition. Defendant said that she understood her choices and would like to amend her petition. She immediately provided the court and the State with copies of her amended petition. Defendant also asked the trial court for clarification on the crime for which she had been convicted. The court told her she was convicted of first degree murder and confirmed that with the ASA. The court also explained to defendant that her conviction was based on the theory of accountability because she was "criminally responsible for the actions of another." The court informed defendant that she would be notified of its "ruling on [her] motion. If I docket it, you will be brought back and I'll appoint a lawyer for you on it."

Defendant's amended postconviction petition alleged ineffective assistance of counsel, stating that her attorney failed to investigate and present evidence of defendant's history of abuse. She also claimed that her attorney failed to present a valid affirmative defense of compulsion because she was a victim of battered women's syndrome as a result of...