{ "id": 4022185, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY D. KIMBLE, Defendant-Appellant", "name_abbreviation": "People v. Kimble", "decision_date": "2004-06-09", "docket_number": "No. 4-03-0516", "first_page": "1031", "last_page": "1035", "citations": [ { "type": "official", "cite": "348 Ill. App. 3d 1031" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "803 N.E.2d 1047", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "1051" } ], "opinion_index": 0 }, { "cite": "345 Ill. App. 3d 810", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5872727 ], "year": 2004, "pin_cites": [ { "page": "814" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/345/0810-01" ] }, { "cite": "801 N.E.2d 99", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "112" } ], "opinion_index": 0 }, { "cite": "344 Ill. App. 3d 599", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3778370 ], "year": 2003, "pin_cites": [ { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/344/0599-01" ] }, { "cite": "807 N.E.2d 448", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "452" }, { "page": "452" } ], "opinion_index": 0 }, { "cite": "209 Ill. 2d 227", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461490 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "233" }, { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0227-01" ] }, { "cite": "675 N.E.2d 102", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "106" } ], "opinion_index": 0 }, { "cite": "174 Ill. 2d 410", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223616 ], "year": 1996, "pin_cites": [ { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0410-01" ] }, { "cite": "736 N.E.2d 1092", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "1105-06" }, { "page": "1105" }, { "page": "1105" } ], "opinion_index": 0 }, { "cite": "192 Ill. 2d 348", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 453257 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "360" }, { "page": "360" }, { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/192/0348-01" ] } ], "analysis": { "cardinality": 456, "char_count": 8149, "ocr_confidence": 0.779, "pagerank": { "raw": 5.676830387708631e-08, "percentile": 0.35567691398224377 }, "sha256": "6f1b3804bfa1777cc73d7459cc58a2354b7fb281af53652c74fab84cd4af309c", "simhash": "1:e15a50f43f40aca5", "word_count": 1287 }, "last_updated": "2023-07-14T22:23:16.717830+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. GARY D. KIMBLE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE TURNER\ndelivered the opinion of the court:\nIn August 2001, pursuant to a plea agreement, defendant, Gary D. Kimble, pleaded guilty to aggravated battery of a child (720 ILCS 5/12 \u2014 4.3(a) (West 2000)), and the trial court sentenced him to 10 years\u2019 imprisonment. After an October 2001 hearing, the court denied defendant\u2019s motion to withdraw his guilty plea. In March 2003, defendant filed a pro se postconviction petition. In April 2003, the court summarily dismissed defendant\u2019s petition, finding his claim was frivolous and patently without merit.\nDefendant appeals, contending the trial court erred in summarily dismissing his postconviction petition. We affirm.\nI. BACKGROUND\nIn July 2000, the State charged defendant with aggravated battery of a child in relation to a June 24, 2000, incident. On that date, defendant\u2019s daughter, Alexis C., sustained permanent injuries that doctors diagnosed were the result of shaken-baby syndrome.\nDefendant and the State entered into a plea agreement, under which defendant was to plead guilty to aggravated battery of a child, and the State would dismiss other pending charges and recommend a sentence of 10 years\u2019 imprisonment. At the August 2001 guilty plea hearing, defendant denied several times that he intended to harm Alexis, and the trial court refused to accept his guilty plea. Defendant eventually approached the court and admitted \u201cknowing that I shook and that would cause great bodily harm to Alexis [C.]\u201d The court asked defendant if his plea was voluntary, and defendant replied in the affirmative. The court also asked if defendant was satisfied with the performance of his hired attorney, John Alvarez, and defendant again replied in the affirmative. Defendant then pleaded guilty to aggravated battery of a child.\nIn August 2001, defendant filed a pro se motion to withdraw his guilty plea. In October 2001, Robert Scherschligst, defendant\u2019s counsel on the postplea motion, filed an amended motion to withdraw defendant\u2019s guilty plea, asserting (1) the factual basis for the guilty plea was insufficient, (2) the guilty plea was not knowing and voluntary, (3) the guilty plea was based on a misapprehension of fact and law, (4) defendant\u2019s trial counsel coerced him to plead guilty, and (5) defendant\u2019s trial counsel was ineffective.\nThe trial court held a hearing on the amended motion. Defendant testified Alvarez did not (1) provide him with discovery materials, (2) accept his collect calls, and (3) discuss the facts of the case or the nature of the offense with him. According to defendant, Alvarez kept telling him to accept the plea agreement or he would get 15 to 20 years\u2019 imprisonment.\nThe State presented the testimony of Alvarez, who testified that, while he was not sure if he provided defendant copies of the discovery materials, he was certain he went through and discussed the medical reports with defendant. Based on those reports, Alvarez informed defendant he expected a guilty verdict if they went to trial and recommended defendant accept the plea agreement.\nAfter the hearing, the trial court denied defendant\u2019s motion. Defendant appealed the court\u2019s judgment, alleging the court erred in denying his motion to withdraw his guilty plea. In October 2002, this court affirmed that judgment. People v. Kimble, No. 4 \u2014 01\u20140912, slip order at 11 (October 31, 2002) (unpublished order under Supreme Court Rule 23).\nIn March 2003, defendant filed a pro se postconviction petition, asserting he was denied effective assistance of appellate counsel because his appellate counsel did not argue he was denied effective assistance of trial counsel. Specifically, he argued his trial counsel coerced him into pleading guilty, and despite his request, his counsel did not provide him with the victim\u2019s medical reports that indicated she had been injured prior to having contact with defendant. Defendant also attached to his petition two medical documents regarding his daughter\u2019s injuries.\nIn April 2003, the trial court summarily dismissed defendant\u2019s petition as frivolous and patently without merit because the issue of trial counsel\u2019s effectiveness was raised in both the trial and appellate courts. This appeal followed.\nII. ANALYSIS\nDefendant alleges the trial court erred in summarily dismissing his postconviction petition. This court reviews de novo a trial court\u2019s dismissal of a postconviction petition without an evidentiary hearing. People v. Simms, 192 Ill. 2d 348, 360, 736 N.E.2d 1092, 1105-06 (2000).\nUnder the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 through 122 \u2014 8 (West 2002)), the trial court must first, independently and without considering any argument by the State, determine whether the petition is \u201cfrivolous or is patently without merit.\u201d 725 ILCS 5/122 \u2014 2.1(a)(2) (West 2002). To survive dismissal at this first stage, the petition need only present \u201cthe gist of a constitutional claim,\u201d which is \u201ca low threshold.\u201d People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102, 106 (1996).\nAdditionally, a petition brought under the Act is not a direct appeal but rather is a collateral proceeding that permits inquiry only into constitutional issues that defendant did not raise and could not have raised on direct appeal. Thus, issues defendant raised on direct appeal are barred from consideration by the doctrine of res judicata, and issues that defendant could have raised, but did not, are considered forfeited. People v. Williams, 209 Ill. 2d 227, 233, 807 N.E.2d 448, 452 (2004). A defendant cannot avoid the bar of res judicata by simply rephrasing issues previously addressed on direct appeal. Simms, 192 Ill. 2d at 360, 736 N.E.2d at 1105. However, the doctrines of res judicata and forfeiture will be relaxed in the following three circumstances: (1) where fundamental fairness so requires, (2) where the waiver stems from the ineffective assistance of appellate counsel, or (3) where the facts relating to the claim do not appear on the face of the original appellate record. Williams, 209 Ill. 2d at 233, 807 N.E.2d at 452. A first-stage dismissal can be based on res judicata where the facts are undisputed as to an issue that has in fact been raised and adjudicated. People v. Etherly, 344 Ill. App. 3d 599, 613, 801 N.E.2d 99, 112 (2003).\nIn this case, while defendant uses different terminology and some additional allegations to assert he was denied effective assistance of trial counsel, defendant\u2019s claim of ineffective assistance of trial counsel has already been raised, and the trial court has already held a hearing on that claim. Thus, defendant was given an opportunity to litigate fully his ineffective-assistance claim. As stated, the bar of res judicata cannot be avoided by simply rephrasing issues that have already been raised. Simms, 192 Ill. 2d at 360, 736 N.E.2d at 1105. A defendant also cannot avoid res judicata by adding an additional allegation that is encompassed by a previously adjudicated issue. To hold otherwise would encourage defendants not to state all of the allegations in support of an argument so they could avoid summary dismissal of their postconviction petition based on res judicata. Since defendant\u2019s ineffective-assistance-of-trial-counsel argument had already been addressed, the trial court did not err in summarily dismissing defendant\u2019s postconviction petition.\nAdditionally, we note this case is distinguishable from this court\u2019s decision in People v. Campbell, 345 Ill. App. 3d 810, 814, 803 N.E.2d 1047, 1051 (2004), which was limited to the unique situation presented by the facts of that case.\nIII. CONCLUSION\nFor the reasons stated, we affirm the trial court\u2019s judgment.\nAffirmed.\nSTEIGMANN and McCULLOUGH, JJ., concur.", "type": "majority", "author": "JUSTICE TURNER" } ], "attorneys": [ "Daniel M. Kirwan, of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "John P. Schmidt, State\u2019s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and Perry L. Miller, all 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. GARY D. KIMBLE, Defendant-Appellant.\nFourth District\nNo. 4\u201403\u20140516\nOpinion filed June 9, 2004.\nDaniel M. Kirwan, of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nJohn P. Schmidt, State\u2019s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and Perry L. Miller, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1031-01", "first_page_order": 1049, "last_page_order": 1053 }