{ "id": 79305, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES KLUPPELBERG, Defendant-Appellant", "name_abbreviation": "People v. Kluppelberg", "decision_date": "2002-02-11", "docket_number": "No. 1-99-3795", "first_page": "939", "last_page": "948", "citations": [ { "type": "official", "cite": "327 Ill. App. 3d 939" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "153 Ill. 2d 264", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738560 ], "year": 1992, "pin_cites": [ { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0264-01" ] }, { "cite": "154 Ill. 2d 227", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4821172 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "238" }, { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0227-01" ] }, { "cite": "139 Ill. 2d 351", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5574172 ], "year": 1990, "pin_cites": [ { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0351-01" ] }, { "cite": "187 Ill. 2d 406", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1131043 ], "weight": 6, "year": 1999, "pin_cites": [ { "page": "410" }, { "page": "412" }, { "page": "416" }, { "page": "413" }, { "page": "414-15" }, { "page": "414" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/187/0406-01" ] }, { "cite": "156 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777558 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "162" }, { "page": "162" }, { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0149-01" ] } ], "analysis": { "cardinality": 741, "char_count": 23057, "ocr_confidence": 0.744, "pagerank": { "raw": 4.954869153560656e-08, "percentile": 0.31240045269048505 }, "sha256": "7a66a5c0f1474eede3a19846c1ec80b7dcfdfbe7ed0c4b3a8904f2f06dc7b867", "simhash": "1:237801956078e958", "word_count": 3679 }, "last_updated": "2023-07-14T20:55:57.852492+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. JAMES KLUPPELBERG, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE COHEN\ndelivered the opinion of the court:\nPetitioner, defendant James Kluppelberg, appeals from an order of the circuit court of Cook County granting the State\u2019s motion to dismiss his petition for postconviction relief without an evidentiary hearing. We reverse and remand.\nBACKGROUND\nPetitioner was charged by indictment of 18 counts of first degree murder (111. Rev. Stat. 1983, ch. 38, pars. 9 \u2014 1(a)(1), (a)(2), (a)(3) (now codified, as amended, at 720 ILCS 5/9 \u2014 1(a)(1), (a)(2), (a)(3) (West 2000))), six counts of attempt (first degree murder) (111. Rev. Stat. 1983, ch. 38, pars. 9 \u2014 1(a)(1) (now codified, as amended, at 720 ILCS 5/9 \u2014 1(a)(1) (West 2000))) and three counts of arson (111. Rev. Stat. 1984, ch. 38, pars. 20 \u2014 1(a) (now codified, as amended, at 720 ILCS 5/20 \u2014 1(a) (West 2000))) stemming from a March 24, 1984, fire at 4448 South Hermitage that killed a mother and her five children. Following a bench trial, petitioner was convicted of six counts of first degree murder and three counts of arson and sentenced to natural life in prison. This court affirmed his conviction on direct appeal. People v. Kluppelberg, 257 111. App. 3d 516 (1993).\nOn October 6, 1994, petitioner filed a pro se petition for postconviction relief (petition) pursuant to the Illinois Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 et seq. (West 1994)), claiming that he received constitutionally ineffective counsel at trial as well as in his direct appeal and that he was denied his constitutional right to testify and his constitutional right to a trial by jury. In support of his claims, petitioner made a total of 25 allegations, including: (1) his trial counsel ignored his wishes to have a jury trial; (2) his trial counsel did not allow him to testify and confront his accusers; (3) his trial counsel failed to submit into evidence police reports classifying the fire as accidental; (4) his trial counsel failed to communicate with him concerning his appeal; (5) his appellate counsel failed to raise certain issues with regard to his trial counsel\u2019s ineffectiveness; and (6) his appellate counsel failed to file a petition for rehearing notifying the appellate court of its failure to address certain issues he made on appeal. Petitioner did not attach an affidavit or exhibits to his petition.\nOn October 18, 1994, the trial court appointed postconviction counsel to represent petitioner. On August 4, 1998, the State filed a motion to dismiss the pro se petition alleging that the petition failed to raise any constitutional questions within the purview of the Act or, in the alternative, that the issues raised in the petition were either waived or barred by res judicata. On September 2, 1999, an amended petition was filed by an assistant public defender alleging that trial counsel: (1) refused to comply with petitioner\u2019s decision to have a jury trial; (2) refused to allow petitioner to testify on his own behalf; (3) failed to properly communicate with petitioner; and (4) failed to present the testimony of the Chicago bomb and arson unit investigators who determined that the fire was accidental. Attached to the amended petition as exhibits were the affidavit of petitioner, part of the trial transcript concerning jury waiver and a bomb and arson unit\u2019s \u201ccause and origin\u201d report dated March 25, 1984.\nIn his affidavit, petitioner declared that he informed his trial counsel on numerous occasions that he wanted a jury trial and wished to testify on his own behalf, but he was told by his trial counsel to \u201cnot worry\u201d and to \u201ckeep his mouth shut.\u201d Petitioner further stated that trial counsel threatened that if petitioner testified, trial counsel \u201cwould withdraw from [his] case and leave [petitioner] in the hands of a public defender.\u201d Petitioner also declared that he never met or talked with his trial counsel in a private setting, only having the opportunity to discuss his case with trial counsel in the \u201cbull pen.\u201d\nOn September 23, 1999, the State filed a \u201cResponse to James Kluppelberg\u2019s Supplemental Petition for Post-Conviction Relief\u201d which raised essentially the same objections as those set forth in its motion to dismiss. On October 6, 1999, petitioner filed a motion to set his amended petition for an evidentiary hearing and to strike portions of the State\u2019s \u201canswer.\u201d A hearing was conducted later the same day. At the hearing, the trial judge determined that the document filed by the State on September 23, 1999, was not an \u201canswer\u201d to petitioner\u2019s amended petition but, rather, a supplement to its previously filed motion to dismiss. A hearing was then conducted solely on the State\u2019s motion to dismiss.\nThe State argued that petitioner\u2019s claim that he had been denied his right to a jury trial had been waived. The State also argued that petitioner failed to demonstrate that he was denied his right to testify where the trial transcript revealed that at no point during the course of the trial did petitioner indicate to the court his desire to testify. The State further argued that petitioner\u2019s claim that his trial counsel failed to properly communicate with him was basically an ineffectiveness of counsel claim and referred the trial judge to the appellate court decision finding trial counsel effective. Finally, the State argued that petitioner\u2019s allegation of ineffectiveness for failure to elicit testimony that the fire was an accident had been waived and was a matter of \u201ctrial tactics\u201d not subject to judicial review in postconviction proceedings.\nPetitioner\u2019s postconviction counsel responded by drawing the court\u2019s attention to petitioner\u2019s affidavit. Postconviction counsel emphasized the numerous occasions on which petitioner informed his trial counsel of his desire to have a jury trial and his desire to testify on his own behalf. Postconviction counsel also emphasized the fact that petitioner\u2019s trial counsel never met with petitioner in a private setting despite the fact that petitioner was facing the death penalty. Postconviction counsel further argued that a hearing conducted on a motion in limine filed by petitioner\u2019s trial counsel demonstrated that although trial counsel knew of a police report in which two Chicago police officers had determined that the fire was accidental, trial counsel had failed to call either police officer to testify during the trial. Post-conviction counsel, however, failed to attach a copy of this police report to the amended petition, failed to attach the transcript of the hearing on the motion in limine to the amended petition and failed to bring a copy of the transcript with him to the hearing on the State\u2019s motion to dismiss.\nThe trial judge granted the State\u2019s motion to dismiss petitioner\u2019s postconviction petition, finding: (1) the bomb and arson unit\u2019s \u201ccause and origin\u201d report attached as an exhibit to the amended petition did not support petitioner\u2019s assertion that the fire was accidental; (2) there was no evidence presented in the amended petition to support the conclusion that the fire was accidental; (3) all issues raised in petitioner\u2019s postconviction petition could have been raised on direct appeal; (4) the record reflected a valid jury waiver; and (5) the appellate court decision correctly determined that trial counsel was not ineffective. This appeal followed.\nANALYSIS\nOn appeal, petitioner alleges that he received inadequate representation in the postconviction proceedings in violation of Supreme Court Rule 651(c) (134 111. 2d R. 651(c)). Petitioner also alleges that he is entitled to an evidentiary hearing on the issues of his trial counsel\u2019s: (1) failure to communicate with him in a meaningful and private manner; (2) failure to present critical evidence that the cause of the fire was accidental; (3) failure to request a jury trial despite petitioner\u2019s numerous requests that counsel do so; and (4) refusal to allow him to testify on his own behalf. Petitioner further alleges that the trial court erred in determining that petitioner\u2019s ineffectiveness of trial counsel claims and his claims that he was denied his constitutional rights to a jury and to testify on his own behalf were waived.\nA. Inadequate Postconviction Counsel\nWe first address petitioner\u2019s claim that his postconviction counsel was inadequate for: (1) failing to attach to the amended petition a police report, transcript or affidavit in support of the contention that the fire was accidental; and (2) failing to allege appellate counsel\u2019s ineffectiveness for failure to raise the issue of trial counsel\u2019s ineffectiveness (for a similar failure to present evidence of accident) on direct appeal.\nIt is well established that a defendant has no constitutional right to the assistance of counsel in postconviction proceedings. People v. Davis, 156 Ill. 2d 149, 162 (1993). The Illinois legislature \u201chas provided by statute for the appointment of counsel to indigent defendants who file pro se post-conviction petitions.\u201d Davis, 156 Ill. 2d at 162; 725 ILCS 5/122 \u2014 4 (West 2000). \u201cBecause the right to counsel in post-conviction proceedings is wholly statutory [citation], post-conviction petitioners are entitled only to the level of assistance provided by the Post-Conviction Hearing Act.\u201d People v. Turner, 187 Ill. 2d 406, 410 (1999). Our supreme court has defined that assistance as a \u201creasonable level of assistance.\u201d People v. Owens, 139 Ill. 2d 351, 364 (1990).\nSupreme Court Rule 651(c) outlines the specific duties of appointed counsel in postconviction proceedings, stating:\n\u201cRecord for Indigents; Appointment of Counsel. Upon the timely filing of a notice of appeal in a post-conviction proceeding, if the trial court determines that the petitioner is indigent, it shall order that a transcript of the record of the post-conviction proceedings, including a transcript of. the evidence, if any, be prepared and filed with the clerk of the court to which the appeal is taken and shall appoint counsel on appeal, both without cost to the petitioner. The record filed in that court shall contain a showing, which may be made by the certificate of petitioner\u2019s attorney, that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petition filed pro se that are necessary for an adequate presentation of petitioner\u2019s contentions.\u201d (Emphasis added.) 134 Ill. 2d R. 651(c).\n1. Failure To Attach Police Report, Transcript or Affidavit to Supplemental Petition.\nPetitioner argues that his postconviction counsel did not comply with Rule 651(c) because he failed to attach to the amended petition a police report, transcript or affidavit to support the claim that trial counsel was ineffective for failing to introduce into evidence a police report that classified the fire at 4448 South Hermitage as accidental. We agree. \u201cRule 651(c) plainly requires that appointed post-conviction counsel make \u2018any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner\u2019s contentions.\u2019 \u201d People v. Turner, 187 Ill. 2d 406, 412 (1999), quoting 134 Ill. 2d R 651(c); People v. Johnson, 154 Ill. 2d 227, 238 (1993).\nDuring the 1989 trial, the burden was on the State to establish that the fire that occurred on March 24, 1984, at 4448 South Hermitage was of incendiary origin (arson). To that end, the State presented the expert testimony of Officer Francis Burns of the office of fire investigation, Chicago fire department. Officer Burns testified that on March 24, 1984, he was conducting a \u201ccause and origin\u201d training class at the 4448 South Hermitage fire scene. Officer Burns testified that during the class\u2019 investigation, he noticed a \u201cheavy deep alligatoring pattern\u201d on some of the debris located at the center rear section of the building. Officer Burns also testified that at the same section of the building he noticed \u201cfinger patterns.\u201d According to Officer Burns, \u201calligatoring\u201d indicates a fire that generated extremely high temperatures and \u201cfinger patterns\u201d indicate that some type of accelerant was used to start the fire. Officer Burns testified that based on these \u201cburn patterns\u201d he concluded that the fire at 4448 South Hermitage was the result of arson.\nOn cross-examination, Officer Burns admitted that he did not make a report documenting his findings and conclusion that the fire at 4448 South Hermitage was arson. Officer Burns did state, however, that the trainees prepared individual reports, but these reports were not kept as a matter of record because it was a \u201csimple training exercise.\u201d\nIn petitioner\u2019s pro se petition, he alleged that his trial counsel was incompetent for not introducing into evidence a police report determining that the fire was accidental. Five years later, postconviction counsel amended the pro se petition alleging that trial counsel was ineffective for failing to impeach Officer Burns\u2019 testimony with a bomb and arson unit \u201ccause and origin\u201d report that classified the fire as accidental. Postconviction counsel attached a copy of the bomb and arson unit\u2019s \u201ccause and origin\u201d report to the amended petition. On appeal, petitioner alleges that postconviction counsel attached the wrong report to the amended petition.\nAt the hearing on the State\u2019s motion to dismiss petitioner\u2019s amended postconviction petition, the trial judge repeatedly asked post-conviction counsel on what evidence he was relying to support the allegation that trial counsel was ineffective for failing to impeach Officer Burns\u2019 testimony with evidence that the fire was accidental:\n\u201cTHE COURT: Let me verify that I understand what you\u2019re relying on in making that assertion. What are you relying on in making that assertion?\n[COUNSEL]: The two witnesses, the two Chicago police officers had decided that the fire was accidental. I have given one of the reports, I subpoenaed one of the reports, however, I never received\u2014\nTHE COURT: You\u2019re relying on police reports or Bomb and Arson Unit reports? From my review of all these materials it was my recollection that I had [sic] reviewed any sworn affidavits.\n*\nTHE COURT: You\u2019re talking about an argument made during the course of the trial. I\u2019m asking you now what are you relying upon in making this assertion that two witnesses would have testified that the fire was started accidentally other than what you stated?\n[COUNSEL]: I\u2019m relying on the attorney stating that on the record during the motion in limine and the one Chicago Police Department report that I have filed.\n\u2756 * *\nTHE COURT: Wait a minute, [counsel], there is not one shred of evidence that anything was provided to this Court this fire was closed as accidental. What are you talking about?\n[COUNSEL]: The Court has the transcript of the entire trial, that is a part of the record. If you wish I will bring it in.\nTHE COURT: What specifically are you talking about?\n[COUNSEL]: I\u2019m talking about the motion in limine which the attorney argued\u2014\nTHE COURT: The attorney argued about the police report which you have already stated.\n* * *\nTHE COURT: Do you have the trial transcript with you?\n[COUNSEL]: I don\u2019t have it, I can bring a copy of it, Judge.\u201d\nAfter both parties presented argument, the trial judge granted the State\u2019s motion to dismiss based, in part, on the fact that petitioner\u2019s assertion that the fire was accidental and not arson was not supported by the bomb and arson report attached as an exhibit to the amended petition.\nThe bomb and arson unit\u2019s \u201ccause and origin\u201d report (dated March 25, 1984) that was attached to the amended petition does not conclude that the fire was accidental, stating only that \u201cbecause of the complete burning and collapse of the building, this detective was unable to conduct Cause & Origin examination as of [sic] this report.\u201d A different police report also contained in the record, however, does conclude that the fire was accidental. This report (dated April 14, 1984) was attached to a motion in limine filed by trial counsel and discussed in detail at the hearing on the motion in limine. The report classifies the status of the case as \u201cclsd. non-criminal\u201d and states that \u201csamples of the debris that were taken from the scene were returned from the lab [and] showed negative for any accelerant.\u201d The report concluded that the case be \u201cclassified as clsoed [sic], apparent accidental fire deaths.\u201d\nThe report classifying the fire as accidental is located in volume one of the common law record on pages 57 through 59. While Rule 651(c) does not require that appointed postconviction counsel \u201cexamine the entirety of a petitioner\u2019s trial proceedings,\u201d it does require that appointed postconviction counsel \u201cexamine as much of the transcript of proceedings as is necessary to adequately present and support those constitutional claims raised by the petitioner.\u201d People v. Davis, 156 Ill. 2d 149, 164 (1993). Here, when asked by the trial judge what postconviction counsel was relying on to support petitioner\u2019s claim that the fire was accidental, postconviction counsel persistently referred to trial counsel\u2019s argument during the hearing on the motion in limine. It is obvious from this dialogue that postconviction counsel was totally unaware that the possibly exculpatory police report itself was in the record. This is clearly inadequate representation under the requirements of Rule 651(c).\nFurther, adding yet two more additional bricks to this ever-growing pyramid of incompetence, although postconviction counsel repeatedly referred to trial counsel\u2019s argument during the hearing on the motion in limine as support for petitioner\u2019s claim that the fire was accidental, counsel failed to attach the transcript of that hearing to the amended petition. And even more egregious is the fact that postconviction counsel failed to bring a copy of the transcript with him to the hearing on the State\u2019s motion to dismiss.\nThe State asserts that the underlying claim of ineffectiveness of trial counsel lacks any merit because the testimony presented at the motion in limine hearing clearly establishes that the police report would not have impeached Officer Burns\u2019 testimony and therefore postconviction counsel\u2019s failure to amend the petition to include a copy of the police report, transcript or affidavits did not prejudice petitioner. We reject this argument. We will not \u201cspeculate whether the trial court would have dismissed the petition without an evidentiary hearing if counsel had adequately performed his duties under Rule 651(c).\u201d People v. Turner, 187 Ill. 2d 406, 416 (1999), citing People v. Johnson, 154 Ill. 2d 227, 246 (1993). This is especially true as the trial judge explicitly stated that she rejected petitioner\u2019s argument that the fire was the result of an accident because \u201cthere [was] not one shred of credible evidence set forth in the [amended] petition to support that conclusion.\u201d\n2. Failure To Allege Ineffectiveness of Appellate Counsel\nPetitioner also claims that postconviction counsel was inadequate for failing to allege appellate counsel\u2019s ineffectiveness (for failure to raise the issue of trial counsel\u2019s ineffectiveness for failure to introduce the police report into evidence, to impeach Officer Burns\u2019 testimony with the police report and to call the police officers who drafted the report to testify during the trial).\nIn his pro se postconviction petition, petitioner alleged that his appellate counsel was ineffective for failing to raise the issue of trial counsel\u2019s ineffectiveness for failing to introduce into evidence the police report that classified the fire as accidental. In the amended petition, however, it was only alleged that trial counsel was ineffective for failing to raise this issue. There was no mention of appellate counsel\u2019s ineffectiveness for not raising the issue of trial counsel\u2019s ineffectiveness with respect to the police report. Therefore, the trial judge held that the issue of trial counsel\u2019s ineffectiveness was waived.\nThe trial judge was correct in holding that postconviction counsel\u2019s failure to allege that appellate counsel was ineffective for not raising the issue of trial counsel\u2019s ineffectiveness with respect to the police report waived the issue of trial counsel\u2019s ineffectiveness with respect to the police report. However, there is an exception to the waiver doctrine in postconviction proceedings. Petitioner correctly asserts that if postconviction counsel had in fact alleged that appellate counsel was ineffective for not raising the issue of trial counsel\u2019s ineffectiveness with regard to the police report, the trial judge could not have dismissed the argument on the basis of waiver. People v. Turner, 187 Ill. 2d 406, 413 (1999); People v. Flores, 153 Ill. 2d 264, 277 (1992). Our supreme court has held that a failure of postconviction counsel to \u201cmake a routine amendment to [a] post-conviction petition which would overcome the procedural bar of waiver\u201d constitutes unreasonable assistance in violation of Rule 651(c). Turner, 187 Ill. 2d at 414-15. Therefore, our analysis leads us to find that postconviction counsel\u2019s failure to assert appellate counsel\u2019s ineffectiveness, especially where it was properly alleged in the pro se petition, was patently unreasonable.\nCONCLUSION\nPostconviction counsel\u2019s failure to attach to the amended petition a police report, transcript or affidavit supporting the conclusion that the fire was accidental, coupled with his failure to allege appellate counsel\u2019s ineffectiveness for failing to raise the issue of trial counsel\u2019s ineffectiveness with respect to this issue on direct appeal, \u201cfell below the level of assistance required by Rule 651(c).\u201d Turner, 187 Ill. 2d at 414. Because this issue is dispositive, we need not address the remaining arguments on appeal.\nAccordingly, the judgment of the circuit court of Cook County dismissing petitioner\u2019s amended postconviction petition without an evidentiary hearing is reversed. This cause is remanded to the circuit court with directions that new postconviction counsel be appointed and that petitioner be allowed to replead his postconviction petition.\nReversed and remanded with directions.\nTULLY and COUSINS, JJ., concur.\nAlthough the record states that Officer Burns conducted his class at the scene of the fire on March 24, 1989, it is apparent from the context of Officer Burns\u2019 direct testimony and cross-examination testimony that he in fact conducted his class at the scene of the fire on March 24, 1984, the date of the fire at 4448 South Hermitage.", "type": "majority", "author": "PRESIDING JUSTICE COHEN" } ], "attorneys": [ "Michael J. Pelletier and Deborah Israel, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James Fitzgerald, and William Toffenetti, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES KLUPPELBERG, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1-99-3795\nOpinion filed February 11, 2002.\nMichael J. Pelletier and Deborah Israel, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James Fitzgerald, and William Toffenetti, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0939-01", "first_page_order": 957, "last_page_order": 966 }