People v. Weninger
State: Illinois
Court: 3rd District Appellate
Docket No: 3-95-0758
Case Date: 10/03/1997
No. 3--95--0758
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 14th Judicial Circuit,
) Rock Island County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 91--CF--638
)
RODNEY L. WENINGER, ) Honorable
) John D. O'Shea,
Defendant-Appellant. ) Judge Presiding
________________________________________________________________
JUSTICE HOMER delivered the opinion of the court:
________________________________________________________________
Defendant Rodney L. Weninger appeals from the trial court's
denial of his petition for relief under the Post-Conviction
Hearing Act (725 ILCS 5/122--1 et seq. (West 1994)). We affirm.
PROCEDURAL CONTEXT
The defendant was convicted of aggravated criminal sexual
assault and criminal sexual assault (720 ILCS 5/12--14(b)(1), 12-
-13(a)(3) (West 1992)) of his 10-year-old adopted daughter, T.W.
On April 6, 1992, he was sentenced to 15 years in the Department
of Corrections. The defendant appealed, arguing that (1) the
State's evidence was insufficient to convict; and (2) the court
erred in permitting T.W. to testify on closed circuit television
pursuant to the Child Shield Act (the Act) (725 ILCS 5/106B--1
(West 1992)). This court affirmed, holding that the evidence
proved the defendant guilty beyond a reasonable doubt, and the
defendant's sixth amendment right of confrontation was not
violated by the Act on its face or as applied. People v.
Weninger, 243 Ill. App. 3d 719, 611 N.E.2d 77 (1993), pet. for
leave to appeal denied, 152 Ill. 2d 578, 622 N.E.2d 1225.
On October 31, 1994, the defendant filed a petition for
post-conviction relief, arguing that (1) application of the Act
deprived him of his right to a face-to-face confrontation with
T.W. under section 8 of article I of the Illinois Constitution;
and (2) he had received ineffective assistance of counsel. After
reviewing the parties' arguments and relevant case law, the court
denied the petition. Our consideration of the issues on appeal
requires a brief overview of the Act.
THE CHILD SHIELD ACT
At the time of the defendant's trial and during the pendency
of his direct appeal, the Child Shield Act permitted child sex
offense victims, under certain circumstances, to testify via
closed circuit television outside the physical presence of the
defendant. 725 ILCS 5/106B--1 (West 1992). The procedure had
passed federal constitutional muster (Maryland v. Craig, 497 U.S.
836, 111 L. Ed. 2d 666, 110 S. Ct. 3157 (1990)); however, there
were no reported opinions ruling on the Act's validity under the
Illinois Constitution. On February 17, 1994, after the mandate
was issued on the defendant's direct appeal and his petition for
leave to appeal was denied, the Illinois Supreme Court struck
down the Act, holding that it violated the "face-to-face"
confrontation clause of the state constitution (Ill. Const. 1970,
art. I, 8). People v. Fitzpatrick, 158 Ill. 2d 360, 633 N.E.2d
685 (1994).
The Illinois Constitution was subsequently amended to remove
the "face-to-face" language of article I, section 8, and conform
this state's confrontation clause to the confrontation clause of
the sixth amendment of the federal constitution. Ill. Const.
1970, art. I, 8 (amended November 8, 1994). The Child Shield
Act was then reenacted. 725 ILCS 5/106B--5 (West Supp. 1995).
In the meantime, People v. Dean, 175 Ill. 2d 244, 677 N.E.2d
947 (1997), was pending direct review when Fitzpatrick was handed
down. There, as in this case and Fitzpatrick, the child victim
had testified by closed circuit television outside the
defendant's physical presence. At issue in Dean was whether,
given the subsequent amendment to the state constitution and
reenactment of the Act, the defendant was entitled to a new trial
pursuant to Fitzpatrick. A divided appellate court had held that
the state constitutional amendment cured any error in Dean's
trial. People v. Dean, No. 3--93--0659 (1995) (unpublished order
under Supreme Court Rule 23). The supreme court, however,
disagreed, noting that an opinion declaring a new constitutional
rule is to be applied retroactively to criminal cases pending
direct review at the time the new rule is announced. Since
Fitzpatrick was clearly a new rule of constitutional dimension,
the court granted Dean a new trial in which he would be entitled
to confront the victim face-to-face. Dean, 175 Ill. 2d at 261,
677 N.E.2d at 955.
ISSUES AND ANALYSIS
Retroactive Application of Fitzpatrick
The defendant initially contends that the trial court
improperly determined that he is not entitled to the benefit of
Fitzpatrick on the basis of his claim for post-conviction relief.
He asserts that Fitzpatrick was pending direct review in the
supreme court contemporaneously with his own petition for leave
to appeal. Under these circumstances, he argues, he should be
granted a new trial even though his case was no longer on direct
review when the court issued its opinion in Fitzpatrick. We
disagree.
The Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq.
(West 1994)) provides a collateral remedy for defendants who
claim that substantial violations of their constitutional rights
occurred during trial. People v. Eddmonds, 143 Ill. 2d 501, 578
N.E.2d 952 (1991). However, new constitutional rules are not to
be applied retroactively to cases on collateral review except
where the new rule (1) places certain kinds of individual conduct
beyond the scope of the criminal laws; or (2) requires the
observance of procedures "implicit in the concept of ordered
liberty." People v. Flowers, 138 Ill. 2d 218, 241, 561 N.E.2d
674, 683 (1990) (citing Teague v. Lane, 489 U.S. 288, 103 L. Ed.
2d 334, 109 S. Ct. 1060 (1989)). The defendant does not contend
that the rule of Fitzpatrick falls within the first exception,
but argues that T.W.'s testimony on closed circuit television
outside his presence "seriously undermine[d] the notion that
[his] conviction *** was obtained accurately."
Obviously, any trial error of constitutional dimension is
serious. However, our supreme court has held that the second
exception, which the defendant seeks to apply in this case, is to
be narrowly construed. Flowers, 138 Ill. 2d 218, 561 N.E.2d 674.
Where, as here, the constitutional issue is one affecting the
conduct of a trial without directly implicating the determination
of guilt or innocence, the exception is unavailing. See, e.g.,
Flowers, 138 Ill. 2d 218, 561 N.E.2d 674 (exception inapplicable
to Reddick issue relating to burden-shifting voluntary
manslaughter jury instructions); People v. Moore, 282 Ill. App.
3d 602, 668 N.E.2d 1181 (1996) (exception inapplicable to rule of
Kilpatrick precluding an increase of a single sentence to a
period within the aggregate period of improperly imposed
consecutive sentences); cf. People v. Jimerson, 166 Ill. 2d 211,
652 N.E.2d 278 (1995) (defendant granted new trial on post-
conviction despite waiver of challenge to State's knowing use of
perjured testimony).
In this case, it cannot be said that the violation of the
defendant's right to confront T.W. face-to-face affected the
determination of his guilt or innocence, or otherwise undermined
an accurate conviction. The trial judge found that T.W. would
likely suffer severe adverse effects by testifying in the
courtroom; he did not find that she could not reasonably
communicate. See 725 ILCS 5/106B--1(a)(1)(ii) (West 1992). On
direct appeal, we affirmed the court's ruling and found that the
evidence was sufficient to convict. Weninger, 243 Ill. App. 3d
719, 611 N.E.2d 77. Under the circumstances, there is no reason
to believe that the same evidence would not have been introduced
if T.W. had confronted the defendant face-to-face. The
defendant's bald speculation that T.W. might not have testified
without the benefit of the Act is just that. It is unsupported
by anything in the record. Cf. Dean, 175 Ill. 2d 244, 677 N.E.2d
947 (child victim had refused to testify in open court at
defendant's first trial). Accordingly, we find that the rule of
Fitzpatrick does not apply retroactively to afford post-
conviction relief.
Ineffective Assistance of Counsel
The defendant next argues that he received ineffective
assistance of trial and appellate counsel because his attorneys
waived a challenge to the constitutionality of the Act under
section 8 of article I of the Illinois Constitution (Ill. Const.
1970, art. I, 8). The defendant points out that his petition
for leave to appeal to the supreme court was denied on October
28, 1993. He suggests that his attorney should have supplemented
his brief by adding the state constitutional challenge that was
then pending supreme court review in Fitzpatrick.
To establish a claim of ineffective assistance of trial
counsel, a defendant must show that (1) counsel's representation
fell below an objective standard of reasonableness; and (2) a
reasonable probability exists that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. Strickland v. Washington, 466 U.S. 668, 80 L.
Ed. 2d 674, 104 S. Ct. 2052 (1984). A defendant must overcome a
strong presumption that counsel acted within a wide range of
reasonable, competent assistance. People v. Johnson, 128 Ill. 2d
253, 538 N.E.2d 1118 (1989). Representation based on the law
prevailing at the time of trial is adequate, and counsel is not
incompetent for failing to accurately predict that existing law
will change. People v. Hartfield, 232 Ill. App. 3d 198, 596
N.E.2d 703 (1992). The same principles apply for claims of
inadequate representation on direct appeal. People v. Barnard,
104 Ill. 2d 218, 470 N.E.2d 1005 (1984). Appellate counsel is
not required to raise issues which he reasonably determines are
not meritorious. People v. Collins, 153 Ill. 2d 130, 606 N.E.2d
1137 (1992).
In this case, the defendant has not demonstrated that his
attorneys' conduct fell below reasonable professional standards
based on prevailing law. A logical review of the law in effect
at the time of trial and throughout the period of the defendant's
direct appeal confirmed the constitutionality of the Child Shield
Act. The Act did not violate the sixth amendment confrontation
clause of the Constitution of the United States (Maryland v.
Craig, 497 U.S. 836, 111 L. Ed. 2d 666, 110 S. Ct. 3157 (1990)),
and the "face-to-face" clause of article I, section 8, of the
Illinois Constitution had been ruled coequal to the sixth
amendment guarantee (People v. Tennant, 65 Ill. 2d 401, 358
N.E.2d 1116 (1976)). As such, both trial and appellate counsel
could reasonably presume that the Act was not unconstitutional.
Their failure to foresee that the supreme court would find
otherwise is not incompetence. See Hartfield, 232 Ill. App. 3d
198, 596 N.E.2d 703. Therefore, the trial court properly ruled
that the defendant's attorneys' failure to preserve the state
constitutional issue at trial and on direct appeal was not
professional incompetence.
Trial Court's Reliance on Unpublished Rule 23 Order
Finally, the defendant contends that the trial court
improperly relied on the unpublished appellate decision in Dean
when it rejected his post-conviction claims. However, since the
trial court reached the correct result, its stated reasons, even
if erroneous, do not entitle the defendant to relief on appeal.
People v. Novak, 163 Ill. 2d 93, 643 N.E.2d 762 (1994).
CONCLUSION
For the reasons stated, the judgment of the circuit court of
Rock Island County is affirmed.
Affirmed.
LYTTON, P.J., and HOLDRIDGE, J. concur.
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