{ "id": 3748973, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEBORAH S. GRENKO, Defendant-Appellant", "name_abbreviation": "People v. Grenko", "decision_date": "2005-03-28", "docket_number": "No. 4-03-0294", "first_page": "532", "last_page": "537", "citations": [ { "type": "official", "cite": "356 Ill. App. 3d 532" } ], "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": "1049-50" } ], "opinion_index": 0 }, { "cite": "345 Ill. App. 3d 810", "category": "reporters:state", "reporter": "Ill. 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App. 3d 671", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140057 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/ill-app-3d/314/0671-01" ] } ], "analysis": { "cardinality": 704, "char_count": 12848, "ocr_confidence": 0.722, "pagerank": { "raw": 7.682524327565528e-08, "percentile": 0.45302544665731476 }, "sha256": "c28de5742b8583f9fb1a6ac59e04560826a10be4f5ea885b97e064a7956ca274", "simhash": "1:b0f0549dfb756ec6", "word_count": 2088 }, "last_updated": "2023-07-14T16:18:02.423948+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. DEBORAH S. GRENKO, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE COOK\ndelivered the opinion of the court:\nDefendant, Deborah S. Grenko, appeals the order summarily dismissing her pro se petition filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 through 122 \u2014 8 (West 2002)). Defendant argues the circuit court applied the wrong standard in dismissing her petition at the first stage of postconviction proceedings and she raised the gist of a meritorious claim. We affirm.\nI. BACKGROUND\nIn September 1999, a jury convicted defendant of solicitation of murder for hire (720 ILCS 5/8 \u2014 1.2 (West 1996)). In October 1999, the trial court sentenced defendant to 30 years\u2019 imprisonment. This court affirmed defendant\u2019s conviction on direct appeal. People v. Grenko, No. 4\u201499\u20140892 (April 5, 2002) (unpublished order under Supreme Court Rule 23).\nIn December 2002, defendant filed a pro se postconviction petition. The 61-page petition was accompanied by exhibits numbered 1 to 59b and set forth many alleged errors. These alleged errors included the following: (1) jurors slept during trial; (2) defense counsel was ineffective for, among other things, failing to seek a fitness hearing; (3) the jurors were exposed to prejudicial news articles; (4) the prosecution and defense counsel made improper statements during trial; and (5) the charging instrument was flawed. In February 2003, the circuit court, concluding the claims in the petition were frivolous and patently without merit, denied the petition. This appeal followed.\nII. ANALYSIS\nOn appeal, defendant asserts the circuit court erred by applying the wrong standard and dismissing her petition. Defendant contends the circuit court improperly examined the merits of her allegations at the first stage, instead of determining whether the petition set out the gist of a meritorious claim. Defendant cites three examples of the court\u2019s alleged failure to apply the appropriate standard and then simply concludes she stated the gist of a meritorious claim.\nThe State argues defendant challenges only the trial court\u2019s reasoning in dismissing her postconviction petition and not the correctness of the court\u2019s decision. The State concludes defendant has thus forfeited consideration of the merits of the decision. In the alternative, the State addresses defendant\u2019s three contentions and argues the court\u2019s decision was proper.\nBy enacting the Act, the legislature provided a remedy for those defendants who suffered a substantial violation of constitutional rights at trial. See People v. Edwards, 197 Ill. 2d 239, 243-44, 757 N.E.2d 442, 445 (2001). According to the Act, in cases not involving the death penalty, a postconviction proceeding has three stages. Edwards, 197 Ill. 2d at 244, 757 N.E.2d at 445. \u201cAt the first stage, the circuit court must independently review the post[ ]conviction petition *** and determine whether \u2018the petition is frivolous or is patently without merit.\u2019 \u201d Edwards, 197 Ill. 2d at 244, 757 N.E.2d at 445, quoting 725 ILCS 5/122 \u2014 2.1(a)(2) (West 1998). If the court finds the petition to be frivolous or patently without merit, it must dismiss the petition. 725 ILCS 5/122 \u2014 2.1(a)(2) (West 2002). A postconviction petition is frivolous or patently without merit if the petition\u2019s allegations, liberally construed and taken as true, do not present the gist of a constitutional claim. See People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102, 106 (1996). To state the \u201cgist of a constitutional claim,\u201d a low threshold, the petition need not present the claim in its entirety but \u201cneed only present a limited amount of detail.\u201d Gaultney, 174 Ill. 2d at 418, 675 N.E.2d at 106.\nIf the petition states the gist of a claim and the petition is not dismissed, the petition proceeds to the second stage, where, if necessary, counsel is appointed for defendant and the State may file responsive pleadings. See Edwards, 197 Ill. 2d at 245-46, 757 N.E.2d at 446. The trial court then must decide whether defendant\u2019s petition and documentation \u201cmake a substantial showing of a constitutional violation.\u201d Edwards, 197 Ill. 2d at 246, 757 N.E.2d at 446. If not, the circuit court must dismiss the petition. If the defendant has made a substantial showing of a constitutional violation, the petition advances to the third stage at which the court holds an evidentiary hearing. Edwards, 197 Ill. 2d at 246, 757 N.E.2d at 446, citing 725 ILCS 5/122\u20146 (West 1998). We review de novo summary dismissals of postconviction petitions. People v. Patton, 315 Ill. App. 3d 968, 972, 735 N.E.2d 185, 189 (2000).\nWe agree with the State that defendant\u2019s arguments on appeal are flawed because they challenge the trial court\u2019s reasoning but not the ultimate decision. Defendant\u2019s briefs failure to address the merits of the decision makes it difficult for us to ascertain and resolve the issues raised. Generally, such a failure would result in a finding that the appellant forfeited consideration on appeal. See 210 Ill. 2d R. 341(e)(7) (\u201cPoints not argued are waived\u201d); see also Elder v. Bryant, 324 Ill. App. 3d 526, 533, 755 N.E.2d 515, 522 (2001). Compliance with Rule 341(e)(7) is, however, not jurisdictional. People v. Donoho, 204 Ill. 2d 159, 169, 788 N.E.2d 707, 714 (2003). Because one of defendant\u2019s assertions causes debate as to whether a gist of a meritorious claim was raised, we will address that issue.\nDefendant argues that the circuit court improperly dismissed her claim that she was denied a fair trial because jurors were sleeping during her trial. To support her assertion, defendant attached a notarized letter from her mother and her own affidavit, both stating some jurors slept through the trial. Defendant failed to alert the trial court to the sleeping jurors during the trial.\nThe State contends that because defendant failed to alert the court to the sleeping jurors during the trial, the issue is waived. The State relies upon People v. Silagy, 101 Ill. 2d 147, 461 N.E.2d 415 (1984), and People v. Nix, 150 Ill. App. 3d 48, 501 N.E.2d 825 (1986).\nIn Silagy, our supreme court found the defendant forfeited, on direct appeal, consideration of his argument he was denied a fair trial because a juror was seen sleeping. Silagy, 101 Ill. 2d at 170-71, 461 N.E.2d at 426-27. The court held a defendant who sees a juror sleeping has \u201ca duty to call it to the attention of the court at that time.\u201d Silagy, 101 Ill. 2d at 171, 461 N.E.2d at 427. In Nix, the Third District, on appeal from the dismissal of a postconviction petition, applied Silagy and rejected the argument premised on the allegation that a juror slept during trial. Nix, 150 Ill. App. 3d at 50, 501 N.E.2d at 827.\nThis court in People v. Donley, 314 Ill. App. 3d 671, 674, 731 N.E.2d 1260, 1263 (2000), concluded that a defendant\u2019s allegation that the trial judge was asleep for 15 minutes during the defendant\u2019s bench trial for first degree murder \u201csufficiently contained] the \u2018gist of a claim for relief which is meritorious.\u2019 \u201d This court refused to apply waiver despite the fact that the defendant and his counsel were aware of the sleeping judge yet did not raise the asserted error at the time of trial. Donley, 314 Ill. App. 3d at 674, 731 N.E.2d at 1263. We disagree with the ruling in Donley.\nWe agree with Nix and apply Silagy\u2019s forfeiture rule to defendant\u2019s postconviction argument. The purpose of the doctrine of waiver is \u201cto bring alleged errors to the attention of the trial judge and allow that judge an opportunity to correct them, to give the reviewing court the benefit of the judgment and comments of the court below, and to prevent unlimited litigation and unnecessary review of matters which could better be corrected in the court below.\u201d People v. Dunn, 160 Ill. App. 3d 11, 15, 513 N.E.2d 113, 115 (1987). Had defendant brought the sleeping jurors to the court\u2019s attention during the trial, it could have been easily detected and addressed. Because defendant failed to alert the court to the sleeping jurors, she deprived the court of the opportunity to address the problem. Illinois courts have held that the waiver rule is particularly appropriate when an objection could have easily cured the problem during the trial. See People v. Spencer, 347 Ill. App. 3d 483, 486-87, 807 N.E.2d 1228,1231 (2004) (applying waiver when on appeal a defendant argued insufficient foundation for expert testimony, but failed to object at trial).\nThe judge\u2019s presence in the courtroom assures defendants fair trials. The Supreme Court of Illinois has observed that \u201cwithout the trial judge\u2019s presence in the courtroom, there is no judicial authority which can observe, cure, and deter objectionable conduct which may have the effect of prejudicing the defendant in the minds of the jury.\u201d People v. Vargas, 174 Ill. 2d 355, 364, 673 N.E.2d 1037, 1042 (1996). How can a trial judge ever dispute a defendant\u2019s posttrial affidavit that a juror was sleeping unless the defendant brings the sleeping to the judge\u2019s attention at the time it occurs? Further, \u201cthe atmosphere of the courtroom[ ] cannot be reproduced in the record,\u201d so Illinois courts traditionally yield to the trial judge\u2019s singular position of assessing and determining the impact of improper conduct. Green v. University of Chicago Hospitals & Clinics, 258 Ill. App. 3d 536, 541-42, 631 N.E.2d 271, 275-76 (1994). If we allow a defendant to ignore sleeping jurors during the trial, but then argue the ill effects of their sleeping after the jury returns a verdict against them in what the trial judge determined to be a fair trial, we open the door for any convicted defendant who will swear, and/or get a relative to swear, that the jurors were sleeping.\nWaiver is not usually appropriate at the summary-dismissal stage. People v. Newbolds, 352 Ill. App. 3d 678, 682, 816 N.E.2d 1114, 1118. (2004) (supreme court has not spoken definitively on issues of waiver and res judicata); see also People v. Campbell, 345 Ill. App. 3d 810, 813, 803 N.E.2d 1047, 1049-50 (2004). There are degrees of waiver, however. Because of the trial judge\u2019s singular position in assessing courtroom conduct, atmosphere, and demeanor, a failure to bring such problems to the attention of the trial judge prevents their ever being addressed. Failure to object in these cases is not a mere technical violation, an interference with efficient administration, but an insurmountable barrier to evaluation of concerns that cannot be reproduced in the record. More than simple waiver was involved here.\nFor the stated reasons, we affirm the circuit court\u2019s order dismissing defendant\u2019s postconviction petition.\nAffirmed.\nMcCullough, j., concurs.", "type": "majority", "author": "PRESIDING JUSTICE COOK" }, { "text": "JUSTICE KNECHT,\ndissenting:\nI believe defendant has stated the gist of a constitutional claim. Allegations that three named jurors slept during her trial for solicitation of murder for hire is sufficiently troubling to allow the petition to proceed to the second stage of postconviction review.\nWhen Donley, 314 Ill. App. 3d 671, 731 N.E.2d 1260, was decided, Justice McCullough\u2019s dissent expressed concerns. Yet there has not been a flood of claims that judges or jurors were sleeping during trials. Very few convicted defendants have attempted to come through the door the majority implicitly claims was opened in Donley.\nThe majority says it disagrees with the ruling in Donley. Does that mean Donley is overruled? Or is this case somehow distinguishable because it involves jurors rather than a slumbering judge?\nThe trial judge here says perhaps one or more jurors simply closed their eyes during lengthy proceedings. That sounds like fact-finding or perhaps idle speculation. The majority suggests clever defendants and their lawyers may ignore sleeping jurors during trial and then argue about the ill effects of such peaceful repose after the adverse verdict.\nI am confident the trial judges of Illinois can prevent such problems. The issue is not whether future defendants will make such claims. The issue is whether defendant\u2019s claim entitles her to the second stage of the postconviction process. Applying waiver to her argument at the summary-dismissal stage is not appropriate. One purpose of the postconviction process is to review alleged errors that were not corrected at trial or on appeal. Nothing has changed since the decision in Donley. Unless a compelling reason exists to ignore Donley, we should respect precedent.", "type": "dissent", "author": "JUSTICE KNECHT," } ], "attorneys": [ "Daniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "John C. Piland, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Thomas R. Dodegge, 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. DEBORAH S. GRENKO, Defendant-Appellant.\nFourth District\nNo. 4\u201403\u20140294\nOpinion filed March 28, 2005.\nKNECHT, J., dissenting.\nDaniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nJohn C. Piland, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Thomas R. Dodegge, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0532-01", "first_page_order": 550, "last_page_order": 555 }