{ "id": 3502930, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. ARVID NIX, Petitioner-Appellant", "name_abbreviation": "People v. Nix", "decision_date": "1986-11-25", "docket_number": "No. 3\u201485\u20140792", "first_page": "48", "last_page": "52", "citations": [ { "type": "official", "cite": "150 Ill. App. 3d 48" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "231 N.E.2d 436", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "38 Ill. 2d 321", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2859808 ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0321-01" ] }, { "cite": "555 F.2d 115", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 961757 ], "opinion_index": 0, "case_paths": [ "/f2d/555/0115-01" ] }, { "cite": "742 F.2d 1070", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 613377 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/f2d/742/1070-01" ] }, { "cite": "374 N.E.2d 957", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "58 Ill. App. 3d 761", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5625490 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/58/0761-01" ] }, { "cite": "426 N.E.2d 340", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 973", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3101016 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0973-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "461 N.E.2d 415", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "101 Ill. 2d 147", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160289 ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0147-01" ] }, { "cite": "268 N.E.2d 373", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "48 Ill. 2d 48", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2908351 ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0048-01" ] }, { "cite": "133 Ill. App. 3d 1054", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3529136 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/1054-01" ] }, { "cite": "416 N.E.2d 395", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "92 Ill. App. 3d 1006", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5533981 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/92/1006-01" ] } ], "analysis": { "cardinality": 472, "char_count": 9057, "ocr_confidence": 0.762, "pagerank": { "raw": 2.0050387350712206e-07, "percentile": 0.7434398685019861 }, "sha256": "88142b14674ccc43adffe480847fade172c382104fdb98537b9b48ba97d9c198", "simhash": "1:9b2aed89eb6b9e12", "word_count": 1437 }, "last_updated": "2023-07-14T17:09:44.674340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. ARVID NIX, Petitioner-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE SCOTT\ndelivered the opinion of the court:\nThe petitioner, Arvid Nix, appeals from denial of his petition and amended petitions (the petition) under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 \u2014 2). We reverse and remand.\nThe petitioner was convicted following a jury trial for unlawful delivery of a controlled substance and sentenced to five years\u2019 imprisonment, a fine, and restitution. We modified the fine and otherwise affirmed on his direct appeal. (People v. Nix (1984), 133 Ill. App. 3d 1054 (Rule 23 order).) The petitioner filed the instant petition both pro se and through appointed counsel. The petition alleged, inter alia, that the petitioner\u2019s trial counsel had been ineffective in failing to question the witnesses until one or two days prior to trial and in refusing to allow the petitioner to testify in his own defense. The petition further alleged that the petitioner was denied a fair trial as one of the jurors slept during trial. In a supporting affidavit, \u25a0 the petitioner stated that counsel did not inform him that he had the right to testify and the right to decide whether to testify.\nFollowing a hearing on a motion by the State to dismiss the petition, the court found that the petitioner\u2019s presence was not required at a hearing on the petition. Thereafter, the parties stipulated waiver of further argument on the State\u2019s motion to dismiss, on which the court had not specifically ruled. The court then issued a memorandum opinion stating, first, that the petitioner\u2019s presence was not required at the post-conviction hearing and, second, that the petition was denied. In denying the petition the court referred, in relevant part, to the following reasons: counsel\u2019s decision for a defendant not to testify is a matter of trial strategy and the instant counsel\u2019s decision in that regard is adequately covered in the appellate court\u2019s decision on direct appeal, and the court neither saw any nor was advised of any sleeping juror during the trial. The petitioner appeals from that order.\nOn appeal the petitioner argues that the court erred by dismissing the petition without an evidentiary hearing as it adequately raised substantial constitutional violations outside the record. The State responds that the court did not err in dismissing the petition as the petition\u2019s allegations were either waived or determined against the petitioner on direct appeal. With some inconsistency, the State further argues, not in the alternative, that the court did not merely dismiss the petition without a hearing but properly denied the petition on the merits.\nWe find initially that the court dismissed the petition without a full evidentiary hearing. Although the court did not summarily dismiss, and although the petitioner\u2019s presence is not necessarily required for an evidentiary hearing, the record is clear that the petitioner was denied the full hearing on the merits which he sought. The order from which the instant appeal is taken was preceded neither by a full presentation of evidence nor even by counsel\u2019s argument on the merits of the petition, stages which it cannot be argued the petitioner waived.\nWe next address whether the court properly dismissed. A petition for post-conviction relief must present a substantial showing of the respects in which the petitioner\u2019s constitutional rights were violated before a hearing is required on the petition. Ill. Rev. Stat. 1985, ch. 38, par. 122-2; People v. Pierce (1971), 48 Ill. 2d 48, 268 N.E.2d 373.\nWe first reject the portion of the petitioner\u2019s improper-dismissal argument based upon his allegations that during the trial one juror slept and was otherwise inattentive. The petitioner\u2019s failure to call the juror\u2019s behavior to the attention of the court waived the point. People v. Silagy (1984), 101 Ill. 2d 147, 461 N.E.2d 415.\nWe next address the portion of the petitioner\u2019s improper-dismissal argument based upon his allegations of ineffective assistance of counsel.\nTo prevail on a claim that he was deprived of his constitutional right to counsel, the petitioner must bear the heavy burden of showing that his attorney was incompetent in that but for the attorney\u2019s unprofessional errors, the outcome of the trial would probably have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Considering that standard, we find that the petition\u2019s allegation of incompetence of counsel was supported by factors outside the record, particularly by the petitioner\u2019s statement that counsel failed to inform him that he had the right to decide whether to testify, and presented a substantial showing of a constitutional violation. We conclude that the petition required a hearing. Cf People v. Ford (1981), 99 Ill. App. 3d 973, 426 N.E.2d 340.\nIn reaching our conclusion, we note that whether a defendant will testify at his own trial may be influenced by counsel\u2019s tactical decisions, but it is ultimately a decision for the defendant. (People v. Knox (1978), 58 Ill. App. 3d 761, 374 N.E.2d 957.) We further note that counsel\u2019s incomplete or inaccurate information to the defendant regarding the defendant\u2019s right to testify is arguably a factor in consideration of whether counsel was ineffective. See United States v. Curtis (7th Cir. 1984), 742 F.2d 1070; United States ex rel. Wilcox v. Johnson (3rd Cir. 1977), 555 F.2d 115.\nAdditionally, we reject the State\u2019s argument that the instant incompetence issue is res judicata. On direct appeal, we reviewed counsel\u2019s incompetency solely with reference to his attempts to suppress evidence and his strategic choices not to have the defendant and other witnesses testify. We reviewed those issues with reliance upon the trial record. In contrast, resolution of the instant issues requires an inquiry into matters of trial counsel\u2019s dealings with the defendant, matters outside the common law record. See People v. Thomas (1967), 38 Ill. 2d 321, 231 N.E.2d 436.\nBased on the foregoing, the judgment of the circuit court of Knox County is reversed. The cause is remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nBARRY, J., concurs.", "type": "majority", "author": "PRESIDING JUSTICE SCOTT" }, { "text": "JUSTICE HEIPLE,\ndissenting:\nRelief is not available under the post-conviction hearing procedure for issues which were or should have been raised on direct appeal, and an affirmance on direct appeal is res judicata as to all such issues. People v. Churchill (1981), 92 Ill. App. 3d 1006, 416 N.E.2d 395.\nIn the case at bar, the question of whether the petitioner was denied effective assistance of counsel was dealt with and decided contrary to the petitioner on direct appeal. The petitioner\u2019s appellate brief alleged that his trial counsel was ineffective and \u201cshould have allowed him to take the stand on his own behalf and present the testimony of alibi witnesses rather than present a defense of misidentification.\u201d The petitioner asserted in his amended post-conviction petition that he was \u201cdenied effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution and Article One, Section Eight of the Illinois Constitution in that counsel should have allowed this petitioner to take the stand on his own behalf and present the testimony of alibi witnesses rather than present a defense of misidentification.\u201d It is clear that the issue raised in the post-conviction petition is identical to the issue decided on direct appeal, and therefore, the trial court properly dismissed.\nThe majority has allowed the petitioner to sidestep the application of the doctrine of res judicata by piecemealing aspects of what was decided on direct appeal. The problem with such piecemealing is twofold. First, the petitioner did not make the distinction between what was decided on direct appeal and what an evidentiary hearing would show in his post-conviction petition. He should not be allowed to make such a distinction in the instant appeal. Secondly, it is evident that the crux of petitioner\u2019s post-conviction petition is his allegation that trial counsel presented the wrong defense at trial. That is, trial counsel was ineffective for not allowing petitioner to take the stand and present an alibi defense rather than a defense of misidentification. This court held on direct appeal that trial counsel was not ineffective in his choice of defenses.\nThe record on appeal contained all facts necessary to decide the issue of trial counsel\u2019s competence. Any additional facts supplied by an evidentiary hearing on the post-conviction petition would not have altered the decision that trial counsel was competent. Accordingly, I dissent.", "type": "dissent", "author": "JUSTICE HEIPLE," } ], "attorneys": [ "Robert Agostinelli, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Raymond Kimbell II, State\u2019s Attorney, of Galesburg (Terry A. Mertel, State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. ARVID NIX, Petitioner-Appellant.\nThird District\nNo. 3\u201485\u20140792\nOpinion filed November 25, 1986.\nHEIPLE, J., dissenting.\nRobert Agostinelli, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nRaymond Kimbell II, State\u2019s Attorney, of Galesburg (Terry A. Mertel, State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0048-01", "first_page_order": 70, "last_page_order": 74 }