{ "id": 4260958, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHANIEL JACKSON, Defendant-Appellant", "name_abbreviation": "People v. Jackson", "decision_date": "2006-01-12", "docket_number": "No. 4\u201404\u20140007", "first_page": "1196", "last_page": "1201", "citations": [ { "type": "official", "cite": "362 Ill. App. 3d 1196" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "730 N.E.2d 1188", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "1196", "parenthetical": "\"a court may proceed directly to the second prong of the Strickland test and need not examine effectiveness in the absence of prejudice\"" } ], "opinion_index": 0 }, { "cite": "313 Ill. App. 3d 877", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186526 ], "year": 2000, "pin_cites": [ { "page": "887", "parenthetical": "\"a court may proceed directly to the second prong of the Strickland test and need not examine effectiveness in the absence of prejudice\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0877-01" ] }, { "cite": "792 N.E.2d 468", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "472" } ], "opinion_index": 0 }, { "cite": "341 Ill. App. 3d 379", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5575773 ], "year": 2003, "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/341/0379-01" ] }, { "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": "831 N.E.2d 604", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "607" } ], "opinion_index": 0 }, { "cite": "215 Ill. 2d 427", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4060088 ], "year": 2005, "pin_cites": [ { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0427-01" ] }, { "cite": "821 N.E.2d 1093", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "1096" } ], "opinion_index": 0 }, { "cite": "213 Ill. 2d 498", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8449055 ], "year": 2004, "pin_cites": [ { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0498-01" ] }, { "cite": "48 N.E. 688", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1897, "pin_cites": [ { "page": "688" } ], "opinion_index": 0 }, { "cite": "167 Ill. 638", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3092170 ], "year": 1897, "pin_cites": [ { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/ill/167/0638-01" ] }, { "cite": "830 N.E.2d 21", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "29" } ], "opinion_index": 0 }, { "cite": "357 Ill. App. 3d 695", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4135896 ], "year": 2005, "pin_cites": [ { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/0695-01" ] }, { "cite": "239 N.E.2d 433", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1968, "pin_cites": [ { "page": "438" }, { "page": "435" }, { "page": "438" } ], "opinion_index": 0 }, { "cite": "40 Ill. 2d 116", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2855147 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "123" }, { "page": "118" }, { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0116-01" ] }, { "cite": "528 U.S. 152", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9476208 ], "weight": 9, "year": 2000, "pin_cites": [ { "page": "154" }, { "page": "602" }, { "page": "687" }, { "page": "162" }, { "page": "607" }, { "page": "691" }, { "page": "163" }, { "page": "608" }, { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/us/528/0152-01" ] }, { "cite": "422 U.S. 806", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9431 ], "weight": 6, "year": 1975, "pin_cites": [ { "page": "834" }, { "page": "581" }, { "page": "2540-41" }, { "page": "819" }, { "page": "572" }, { "page": "2533" } ], "opinion_index": 0, "case_paths": [ "/us/422/0806-01" ] }, { "cite": "274 N.E.2d 41", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "pin_cites": [ { "page": "42" } ], "opinion_index": 0 }, { "cite": "49 Ill. 2d 228", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2911139 ], "year": 1971, "pin_cites": [ { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0228-01" ] }, { "cite": "256 N.E.2d 798", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "pin_cites": [ { "page": "799" } ], "opinion_index": 0 }, { "cite": "45 Ill. 2d 87", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2897595 ], "year": 1970, "pin_cites": [ { "page": "89" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0087-01" ] }, { "cite": "263 N.E.2d 87", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "pin_cites": [ { "page": "88" } ], "opinion_index": 0 }, { "cite": "46 Ill. 2d 159", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2898041 ], "year": 1970, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0159-01" ] }, { "cite": "541 N.E.2d 1175", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "185 Ill. App. 3d 840", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2647317 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/185/0840-01" ] }, { "cite": "569 N.E.2d 934", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "210 Ill. App. 3d 681", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2533528 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/0681-01" ] } ], "analysis": { "cardinality": 787, "char_count": 13962, "ocr_confidence": 0.778, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1426320607881 }, "sha256": "4bb989e21ddfff1764e648b0c01a8b252735a0e483446cf6c10e7833c7d63b71", "simhash": "1:20c11094b796dff6", "word_count": 2306 }, "last_updated": "2023-07-14T16:28:25.526171+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. NATHANIEL JACKSON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE APPLETON\ndelivered the opinion of the court:\nDefendant, Nathaniel Jackson, appeals from the summary dismissal of his pro se petition for postconviction relief. He makes two arguments: (1) we should dismiss the office of the State Appellate Defender (OSAD) and allow defendant to represent himself in this appeal, and (2) the trial court erred in summarily dismissing his petition, which stated the gist of a claim of ineffective assistance of trial counsel. We deny defendant\u2019s request to represent himself, and we affirm the trial court\u2019s judgment.\nI. BACKGROUND\nThe State charged defendant with burglary (720 ILCS 5/19 \u2014 1 (West 2002)). Because of his criminal history, the offense was a Class X felony. See 730 ILCS 5/5 \u2014 5\u20143(c)(8) (West 2002).\nAt trial, a police officer, Jeff Creel, testified he went to Arrowhead Lanes at approximately 4:30 a.m. on March 25, 2002, in response to a burglar alarm. He noticed a broken window. David Bolt, one of the owners of the bowling alley, testified he came to the scene and noticed that someone had pried open the cash registers and emptied them of $200 to $250 in cash. He also noticed the intruder had broken into some video games, destroyed two video cameras near the snack bar, and removed a ceiling tile in the women\u2019s bathroom. The police found defendant hiding in the drop ceiling. When defendant came down, they peered into the ceiling and found a maroon backpack, which contained a pair of jeans, a knife, an ice pick, and $224 in cash. A videotape showed someone breaking the window and climbing into the building, and the gloves and backpack the intruder was wearing matched those that the police found on or near defendant\u2019s person.\nThe jury found defendant guilty of burglary, and the trial court sentenced him to 28 years\u2019 imprisonment. On direct appeal, we affirmed the conviction and sentence. People v. Jackson, No. 4\u201402\u2014 0732 (March 30, 2004) (unpublished order under Illinois Supreme Court Rule 23).\nDefendant afterward filed a postconviction petition, which the trial court dismissed as frivolous and patently without merit. He appealed from the summary dismissal, and this is the appeal presently before us. Three times in the course of this appeal, defendant filed a pro se motion that we dismiss OSAD and allow defendant to represent himself. We denied those motions. OSAD has now filed a brief and a reply brief in defendant\u2019s behalf, in which it urges us to reconsider these rulings and grant defendant\u2019s motion to proceed pro se.\nII. ANALYSIS\nA. Defendant\u2019s Request To Represent Himself\nDefendant argues (through his appointed counsel) that under Illinois Supreme Court Rules 651(c) and 607 (134 Ill. 2d R. 651(c); Official Reports Advance Sheet No. 22 (October 30, 2002), R. 607, eff. September 30, 2002), as well as section 121 \u2014 13(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/121 \u2014 13(a) (West 2004)), he has the right to represent himself in this appeal. He cites cases which, according to him, stand for the proposition that \u201cthe right to appointed counsel in a post[ 1 conviction proceeding pursuant to Rule 651(c) may be waived.\u201d People v. French, 210 Ill. App. 3d 681, 569 N.E.2d 934 (1991); People v. Williams, 185 Ill. App. 3d 840, 541 N.E.2d 1175 (1989). He notes that the Supreme Court of Illinois has granted motions by indigent defendants to represent themselves in appeals from postconviction proceedings (People v. Harrison, 46 Ill. 2d 159, 161, 263 N.E.2d 87, 88 (1970); People v. Korycki, 45 Ill. 2d 87, 89, 256 N.E.2d 798, 799 (1970); People v. Southwood, 49 Ill. 2d 228, 229, 274 N.E.2d 41, 42 (1971)) and that the United States Supreme Court has condemned the practice of forcing lawyers upon criminal defendants (Faretta v. California, 422 U.S. 806, 834, 45 L. Ed. 2d 562, 581, 95 S. Ct. 2525, 2540-41 (1975)).\nConceding that \u201cRule 651(c) can be read as implicitly affording a defendant the right to refuse appointment of counself,] as in Rule 607(a),\u201d the State nevertheless argues that our refusal to allow defendant to proceed pro se is correct because the record does not show that his waiver of appellate counsel is \u201cvoluntary and intelligent.\u201d The State distinguishes Faretta because that case concerned a criminal trial, whereas the present case concerns an appeal from a postconviction proceeding.\nIn his reply brief, defendant observes that if he had requested to waive appointed counsel at trial, Rule 401(a) (134 Ill. 2d R. 401(a)) would have required the trial court to give him certain admonitions to ensure that the waiver was voluntary and intelligent. He is aware of no authority, however, for requiring such admonitions if he requests to waive counsel on appeal from postconviction proceedings. He argues it would be \u201cincongruous to now require [him] to proceed on appeal with appointed counsel, when he had no constitutional or statutory right to appointed counsel, even if he had requested it, at the filing stage.\u201d (Emphases in original.)\nAlthough criminal defendants have a sixth-amendment right to represent themselves at trial (Faretta, 422 U.S. at 819, 45 L. Ed. 2d at 572, 95 S. Ct. at 2533), they have no federal constitutional right to self-representation on appeal (Martinez v. Court of Appeal, 528 U.S. 152, 154, 145 L. Ed. 2d 597, 602, 120 S. Ct. 684, 687 (2000)). In his brief, defendant makes a reasonable (though belated) argument that under Rules 651(d) and 607, he has the option of representing himself on appeal from the dismissal of his postconviction petition. Rule 651(d) provides: \u201cThe procedure for an appeal in a post[ ]conviction proceeding shall be in accordance with the rules governing criminal appeals, as near as may be.\u201d 134 Ill. 2d R. 651(d). Rule 607, which is a rule governing criminal appeals, states that if the trial court \u201cdetermines that the defendant is indigent and [that the defendant] desires counsel on appeal, the court shall appoint counsel on appeal.\u201d (Emphasis added.) 210 Ill. 2d R. 607(a). Thus, the appointment of counsel \u2014 and, arguably, the counsel\u2019s continuing tenure \u2014 is conditional on the defendant\u2019s desire for such counsel. Also, if one interpreted Rule 651 to forbid self-representation by indigent defendants, this interpretation might put Rule 651 at odds with section 121 \u2014 13(a) of the Code, which conditions the appointment of OSAD on the indigent defendant\u2019s \u201cdesire[ ] [for] counsel on appeal\u201d (725 ILCS 5/121 \u2014 13(a) (West 2004)).\nThese are all, as we said, reasonable arguments, but the time for making these arguments was earlier, in the motions to proceed pro se. Illinois Supreme Court Rule 361(a) requires that such motions state not only \u201cthe relief sought\u201d but also \u201cthe grounds therefor.\u201d 177 Ill. 2d R. 361(a). In his motions, the only authorities defendant cited that came close to being relevant were Faretta and Martinez, which we have already discussed, and People v. Bowman, 40 Ill. 2d 116, 123, 239 N.E.2d 433, 438 (1968), in which the supreme court stated: \u201cIt has been found to be reversible error to refuse a criminal defendant\u2019s timely request for self-representation.\u201d The supreme court made that statement, however, in the context of self-representation in a guilty-plea hearing (Bowman, 40 Ill. 2d at 118, 239 N.E.2d at 435), not self-representation in an appeal from a postconviction proceeding. In his motions, defendant never cited, for instance, Rule 651(d), Rule 607, or section 121 \u2014 31(a) of the Code and never made the arguments grounded on those authorities that he is making now, in his brief. A reviewing court \u201cis not simply a repository in which appellants may dump the burden of argument and research.\u201d People v. Chatman, 357 Ill. App. 3d 695, 703, 830 N.E.2d 21, 29 (2005). Without such argument and research, \u201cwe [were] unable to say whether the motionl s] should [have been] allowed or not, and [they] *** therefore [had to be] overruled.\u201d People ex rel. Akin v. Kipley, 167 Ill. 638, 638, 48 N.E. 688, 688 (1897). The burden of persuasion was on the movant. In his brief, defendant admits that \u201cwhat constitutes a valid waiver of postconviction appellate counsel *** is a question of first impression.\u201d He could not reasonably expect us to answer that question without the benefit of a coherent argument and citation of relevant authorities.\nAt this time, the argument for self-representation comes too late. The attorneys have filed their briefs. To grant defendant\u2019s request to proceed pro se at this late date, we would have to issue a new briefing schedule, and defendant and the State would have to draft and file new briefs. Even when defendants have a constitutional right to represent themselves, they must assert that right in a timely (and, we might add, effective) manner. Bowman, 40 Ill. 2d at 124, 239 N.E.2d at 438; Martinez, 528 U.S. at 162, 145 L. Ed. 2d at 607, 120 S. Ct. at 691. At this point in the appellate process, judicial efficiency outweighs defendant\u2019s interest in individual autonomy (see Martinez, 528 U.S. at 163, 145 L. Ed. 2d at 608, 120 S. Ct. at 692), and we deny his request to proceed pro se in this appeal.\nB. Alleged Ineffectiveness of Counsel\nTo avoid summary dismissal, a postconviction petition must meet two requirements. First, it must state the gist of a constitutional claim. People v. Jones, 213 Ill. 2d 498, 504, 821 N.E.2d 1093, 1096 (2004) . Second, the postconviction proceeding must be the earliest possible opportunity for asserting that claim. A trial court should summarily dismiss a petition \u201cwhere facts ascertainable from the record reveal the petition\u2019s claims have already been decided, waived, or forfeited.\u201d People v. Blair, 215 Ill. 2d 427, 430, 831 N.E.2d 604, 607 (2005) . \u201c[I]ssues that were raised and decided on direct appeal are barred from consideration by the doctrine of res judicata-, issues that could have been raised, but were not, are considered waived.\u201d People v. Williams, 209 Ill. 2d 227, 233, 807 N.E.2d 448, 452 (2004).\nDefendant argues that his postconviction petition states the gist of a claim of ineffective assistance of counsel. Allegedly, his counsel rendered ineffective assistance in five ways. First, counsel failed to consult him before waiving the preliminary hearing. Second, counsel failed to ask him whether he wanted a bench trial instead of a trial by jury. Third, instead of asking defendant what his real reason was for being in the bowling alley at 4:30 a.m., counsel presented a defense that was untrue, namely, that defendant entered the bowling alley to seek shelter from the cold. Defendant alleged in his petition that he actually was \u201chigh on cocaine and alcohol for three nights [straight,] without any sleep,\u201d and \u201cdid not realize what [he] was real[l]y doing.\u201d The window of the bowling alley \u201cwas already broken,\u201d and his \u201ccocaine addiction *** [led him] to enter into that broken window[,l and[ ] [he] did not have controlf ] over [his] actions from that point.\u201d Fourth, counsel never consulted with defendant before sentencing to ascertain whether there were any mitigating factors. Fifth, counsel failed to tender an instruction on the included offense of criminal damage to property.\nWe considered and rejected the first two contentions on direct appeal. People v. Jackson, No. 4\u201402\u20140732, slip order at 11 (March 30, 2004) (unpublished order under Illinois Supreme Court Rule 23). Therefore res judicata bars those contentions. See Williams, 209 Ill. 2d at 233, 807 N.E.2d at 452.\nAs for the third contention, defendant\u2019s alleged intoxication would have made no difference in the verdict. Ineffective assistance of counsel has two elements: (1) defense counsel\u2019s performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that the outcome of the case would have been different but for defense counsel\u2019s substandard performance. People v. Young, 341 Ill. App. 3d 379, 383, 792 N.E.2d 468, 472 (2003). Effective January 1, 2002, Illinois no longer recognized voluntary intoxication as an excuse for criminal conduct. 720 ILCS 5/6 \u2014 3 (West 2004). \u201cA person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition is involuntarily produced and deprives him of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.\u201d 720 ILCS 5/6 \u2014 3 (West 2004). It was not incompetence to refrain from asserting a defense that the law clearly negated.\nAs for the fourth contention, defendant does not state what the mitigating factors would have been. Without that information, we have no basis for concluding that (1) any mitigating factors existed and (2) they would have made a difference in the sentence. See People v. Rodriguez, 313 Ill. App. 3d 877, 887, 730 N.E.2d 1188, 1196 (2000) (\u201ca court may proceed directly to the second prong of the Strickland test and need not examine effectiveness in the absence of prejudice\u201d).\nAs for the fifth contention, we find no reasonable probability that an instruction on the included offense of criminal damage to property would have made any difference in the outcome of this case. No rational jury would have found that defendant intended only to damage property. The evidence was overwhelming that he intended to steal the money in the cash registers and game machines.\nIII. CONCLUSION\nFor the foregoing reasons, we affirm the trial court\u2019s judgment.\nAffirmed.\nTURNER, P.J., and MYERSCOUGH, J., concur.", "type": "majority", "author": "JUSTICE APPLETON" } ], "attorneys": [ "Daniel D. Yuhas and Colleen Morgan, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Julia Rietz, State\u2019s Attorney, of Champaign (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. NATHANIEL JACKSON, Defendant-Appellant.\nFourth District\nNo. 4\u201404\u20140007\nOpinion filed January 12, 2006.\nRehearing denied February 14, 2006.\nDaniel D. Yuhas and Colleen Morgan, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJulia Rietz, State\u2019s Attorney, of Champaign (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": "1196-01", "first_page_order": 1214, "last_page_order": 1219 }