{ "id": 980666, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERNESTO RIVERA, Defendant-Appellant", "name_abbreviation": "People v. Rivera", "decision_date": "2000-06-14", "docket_number": "No. 3\u201498\u20140295", "first_page": "454", "last_page": "458", "citations": [ { "type": "official", "cite": "315 Ill. App. 3d 454" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "256 N.E.2d 374", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "120 Ill. App. 2d 170", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1583520, 1583510 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-app-2d/120/0170-02", "/ill-app-2d/120/0170-01" ] }, { "cite": "607 N.E.2d 286", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "239 Ill. App. 3d 178", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5147772 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/239/0178-01" ] }, { "cite": "531 N.E.2d 17", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "125 Ill. 2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5554681 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-2d/125/0100-01" ] }, { "cite": "684 N.E.2d 414", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "416" }, { "page": "416" }, { "page": "416" } ], "opinion_index": 0 }, { "cite": "291 Ill. App. 3d 541", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 456199 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "544" }, { "page": "544" }, { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/291/0541-01" ] } ], "analysis": { "cardinality": 475, "char_count": 9789, "ocr_confidence": 0.722, "pagerank": { "raw": 1.2533762011296535e-07, "percentile": 0.6106875342925399 }, "sha256": "c104697c4e830da1d6514a784d662415b42416bd8be0bfea6e411ba45ceb7724", "simhash": "1:f3eab06f137a0dba", "word_count": 1577 }, "last_updated": "2023-07-14T22:05:04.441996+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERNESTO RIVERA, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE SLATER\ndelivered the opinion of the court:\nThe defendant, Ernesto Rivera, was convicted of controlled substance trafficking (720 ILCS 570/401.1 (West 1992)) and sentenced to 40 years in prison. Subsequently, he filed a postconviction petition which was, in part, summarily dismissed. At the second stage, more of the defendant\u2019s allegations were dismissed. Finally, relief was denied following an evidentiary hearing. On appeal, the defendant contends that the trial court erred in entering partial dismissals of his postconviction petition. We agree and remand the matter to the trial court for further proceedings consistent with this opinion.\nThe defendant is a Spanish-speaking Mexican-American. He was charged with bringing more than 900 grams of cocaine into the State of Illinois with the intent to deliver the cocaine. His motion to suppress was denied. A jury found him guilty. He was sentenced to 40 years in prison, and a street value fine of $1,774,290 was imposed upon him. The defendant\u2019s sentence was affirmed on appeal. People v. Rivera, No. 3 \u2014 93\u20140648 (1995) (unpublished order under Supreme Court Rule 23).\nThereafter, the defendant filed a pro se postconviction petition alleging six violations of his constitutional rights. The defendant alleged that: (1) his interpreter had not adequately translated the proceedings for him; (2) the sentencing statute under which he was sentenced was unconstitutional; (3) his prison sentence and street value fine were excessive; (4) the trial court erred in denying his motion to suppress; (5) his consent to search was coerced; and (6) both his trial and appellate attorneys rendered ineffective assistance. The tri\u00e1l judge dismissed claims (2) through (5) as frivolous and patently without merit. However, she determined that the defendant had stated the gist of a meritorious claim in both (1) and (6). Therefore, the court appointed an attorney to represent the defendant at the second stage of the postconviction process.\nThe defendant moved pro se to amend his postconviction petition. He wanted to add two claims. Claim (7) argued that the defendant had been prejudiced by gender bias on the jury. In claim (8), the defendant claimed that he had been denied his right to testify on his own behalf. The defendant\u2019s appointed counsel filed an amended postconviction petition on the defendant\u2019s behalf. This petition alleged incompetence on the part of the defendant\u2019s interpreter, ineffective assistance on the part of the defendant\u2019s attorneys, and excessive sentencing.\nThe State moved to dismiss the defendant\u2019s amended petitions. The trial judge dismissed all the claims except the defendant\u2019s contention that his interpreter had been incompetent. That issue was scheduled for an evidentiary hearing.\nDuring the time before the evidentiary hearing, the matter was continued several times at the request of the defendant\u2019s attorney because a transcript of the trial proceedings was not available. Once the transcript became available, the defendant\u2019s postconviction attorney had it translated into Spanish and delivered to the defendant for his review. After this delay, the matter proceeded to a hearing.\nAt the hearing, the defendant\u2019s trial attorney testified that he was unaware of any problems the defendant was having in understanding what was going on at the trial. Had the attorney been aware, he stated, he would have made things clear for the defendant. The defendant\u2019s interpreter testified that she had no difficulty translating for the defendant. She was also unaware that the defendant was confused by the trial. If she had known that the defendant was confused, she would have stopped the proceedings until things could be clarified or a new interpreter could be appointed. The defendant testified that he only understood approximately 50% of the trial proceedings. He claimed that the interpreter spoke too quickly and refused to slow down. The proceedings moved so quickly, according to the defendant, that he did not feel he could interrupt to seek clarification.\nAfter hearing the evidence, the trial court found that the defendant had not proved that his interpreter was incompetent, only that he failed to understand some of the proceedings. The judge further found that the defendant had ample opportunity to stop the proceedings and ask for clarification if he needed it. Consequently, the court denied the defendant\u2019s postconviction petition.\nThe defendant argues first on appeal that the trial court erred in entering partial dismissals of his postconviction petition. He relies on People v. Noel, 291 Ill. App. 3d 541, 684 N.E.2d 414 (1997).\nIn Noel, the trial court dismissed one paragraph of the defendant\u2019s postconviction petition because the allegations contained in that paragraph were frivolous and patently without merit. However, the decision was made after the expiration of the 90-day period for dismissing claims on that basis. The trial court allowed an evidentiary hearing on a separate allegation of the petition. Following the evidentiary hearing, the court denied the defendant relief.\nOn appeal, this court reversed the initial dismissal of the allegation of the defendant\u2019s petition because the court acted outside the 90-day period for effecting such a dismissal. Noel, 291 Ill. App. 3d at 544, 684 N.E.2d at 416. The denial of relief following the evidentiary hearing was affirmed. Noel, 291 Ill. App. 3d at 544, 684 N.E.2d at 416. In a final paragraph, the court cautioned against partial dismissal of post-conviction petitions, noting that partial dismissals could lead to piecemeal appeals. Noel, 291 Ill. App. 3d at 544, 684 N.E.2d at 416.\nIn Noel, we alluded to the problems we could foresee by allowing partial dismissals of postconviction petitions. The facts of the case at bar allow us to determine that those problems should preclude the continued practice of partial dismissals.\nA postconviction proceeding is meant to inquire into the constitutional phases of the defendant\u2019s conviction which have not previously been investigated. People v. Albanese, 125 Ill. 2d 100, 531 N.E.2d 17 (1988). To survive a dismissal at the first stage, a pro se postconviction petition need only present the gist of a meritorious claim. People v. Marks, 239 Ill. App. 3d 178, 607 N.E.2d 286 (1992).\nNowhere in the Post-Conviction Hearing Act (the Act) is there any provision that would allow a trial court to determine that some aspects of the defendant\u2019s petition state the gist of a meritorious claim and others do not. See 725 ILCS 5/122 \u2014 1 et seq. (West 1998). Instead, the trial court must examine the petition as a whole and determine whether, as a whole, the petition states the gist of a meritorious claim. See 725 ILCS 5/122 \u2014 2.1 (West 1998). If it does, then the petition \u2014 as a whole \u2014 must proceed to the second stage, where counsel is appointed to review the petition for the defendant and make any changes counsel deems necessary. 725 ILCS 5/122 \u2014 4 (West 1998). If we were to allow a trial court to dismiss part of a postconviction petition and allow part of the petition to advance to the second stage of the proceedings, the attorney appointed to represent the defendant might believe that he was barred from raising any of the issues dismissed. He might believe so even though his knowledge of the law and the facts of the case would allow him to plead that issue with sufficient specificity to withstand judicial scrutiny.\nIn addition, we note that section 122 \u2014 2.1 of the Act provides that the dismissal of a postconviction petition on the grounds that it is frivolous and patently without merit is a final judgment. See 725 ILCS 5/122 \u2014 2.1(a)(2) (West 1998). However, it is unclear whether any appeal could be taken from that judgment if part of the petition has advanced to the second stage. Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), which allows for appeal from final judgments as to fewer than all claims raised in a proceeding, does not apply to criminal proceedings. See People v. McGary, 120 Ill. App. 2d 170, 256 N.E.2d 374 (1970).\nIn short, we hold that the Act does not provide for partial dismissals of postconviction petitions and that justice and judicial economy would be better served if such dismissals were not allowed. When a defendant has stated the gist of a meritorious claim in his pro se postconviction petition, he is entitled to the appointment of counsel who can reasonably articulate his claims to the court. To the extent that Noel may have been interpreted to approve of the practice of partial dismissals, Noel is overruled.\nHaving determined, then, that the defendant\u2019s postconviction petition must survive as a whole or be dismissed as a whole, we note that the trial court determined that the defendant\u2019s petition stated the gist of a meritorious claim. Therefore, the whole of the petition should have survived to the second stage. Because it did not, we must remand the matter for further proceedings regarding the claims made by the defendant in his pro se petition. The trial court is directed to appoint counsel to represent the defendant and to proceed as though none of the proceedings that followed the partial dismissal had taken place.\nThe judgment of the circuit court of La Salle County is reversed and the matter remanded for further proceedings.\nReversed and remanded.\nHOLDRIDGE and HOMER, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE SLATER" } ], "attorneys": [ "Santiago A. Durango, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Michael James, State\u2019s Attorney, of Ottawa (John X. Breslin, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERNESTO RIVERA, Defendant-Appellant.\nThird District\nNo. 3\u201498\u20140295\nOpinion filed June 14, 2000.\nSantiago A. Durango, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nMichael James, State\u2019s Attorney, of Ottawa (John X. Breslin, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0454-01", "first_page_order": 472, "last_page_order": 476 }