NO. 4-01-0536

JUSTICE STEIGMANN delivered the opinion of the court:

In January 2001, defendant, Angela M. Little, pro sefiled a petition for postconviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-8 (West2000)), alleging, inter alia, that (1) her trial counsel providedineffective assistance by failing to conduct a survey concerningthe effect of pretrial publicity to support defendant's motion tochange venue; and (2) her appellate counsel provided ineffectiveassistance by failing to argue that the trial court erred bydenying her motion to change venue. In April 2001, the trialcourt dismissed defendant's postconviction petition under section122-2.1 of the Act, upon finding that it was untimely filed (725ILCS 5/122-2.1 (West 2000)).

Defendant appeals, arguing that the trial court (1)erred by dismissing her postconviction petition, and (2) lackedthe authority to order that her Department of Corrections (DOC)wages be withheld and remitted to the circuit clerk. We affirm.

In January 1998, defendant's estranged husband, CraigLittle, was murdered by 15-year-old Anthony Jennings, who wasaccompanied by Carl Dueringer, defendant's boyfriend, pursuant toa plan between defendant, Dueringer, and Jennings. In February1998, the State charged defendant with first degree murder (countI) (720 ILCS 5/9-1(a)(1) (West Supp. 1997)) and solicitation ofmurder for hire (count II) (720 ILCS 5/8-1.2(a) (West 1998)). Prior to defendant's trial, the State dismissed count II.

In June 1998, defendant filed a motion to change venuedue to pretrial publicity in Ford County. In July 1998, theState filed a response to defendant's motion. In September 1998,the trial court denied defendant's motion to change venue,stating as follows:

"I've had the opportunity to review themotion for change of venue, which has attached to it numerous news articles from theBloomington paper, the Paxton paper ***. Gibson City is in here. It looks like Champaign as well. *** And the gist of themotion is that this publicity has made it orwill make it impossible to find a jury panelwho could fairly try the issues in this case. And the size of Ford County makes jury selection problematic with a high[-]profile case. There is no doubt about that. And it becomes, in my view, more difficult.

I would acknowledge today that it wouldbe more difficult in Ford County to pick ajury than it would up in Morris in GrundyCounty. Now, that's not a reason to changevenue. The only reason that we change venueis because a [c]ourt finds, based upon pretrial publicity, that the population in FordCounty is so prejudiced against the defendantthat we will not be able to pick a fair andimpartial jury. I believe it is a difficultstandard to meet and one which without somesophisticated surveys *** is very difficultto meet. And the information provided in themotion does not establish in my view that thecommunity is prejudiced. It simply establishes that there is quite a bit of publicity; and to those who have read every singlearticle, they may have formed some opinions. Jurors may be selected and sworn to hear acase that they are familiar with from thenewspapers if they can set it aside. It's astandard question. That's the way we pickjuries all the time.

And in the final analysis, the test forwhether or not venue ought to remain here orbe moved occurs at jury selection, and changeof venue motions are never over until thejury is selected. And so if it turns out tobe a difficult proposition or an impossibleone in selecting [a] jury, I believe thatthat can always be revisited, at least untiljurors are sworn it can be. But to make afinding that I must change venue [because]the population is prejudiced against thedefendant, I can[]not based upon the evidencethat the parties have submitted th[u]s far. So the motion for change is denied." (Emphases added.)

During voir dire, the trial court questioned 69 veniremembers. Of those, 36 had been exposed to pretrial publicity,and the court excused three venire members for cause because theyhad already formed opinions based on that publicity. Defendantdid not renew her motion to change venue following jury selection.

Following her November 1998 trial, the jury convicteddefendant of first degree murder (720 ILCS 5/9-1(a)(1) (WestSupp. 1997)). The trial court later sentenced her to 56 years inprison. The court also ordered that (1) defendant pay $315 incourt costs; and (2) the DOC withhold 50% of defendant's DOCwages and remit those funds to the Ford County circuit clerk tobe applied toward the amounts due in costs.

On direct appeal, this court affirmed defendant'sconviction and sentence (People v. Little, No. 4-99-0145 (March31, 2000) (unpublished order under Supreme Court Rule 23)). InJuly 2000, the Supreme Court of Illinois denied defendant'spetition for leave to appeal (People v. Little, 189 Ill. 2d 695,734 N.E.2d 896 (2000)).

As earlier stated, in January 2001, defendant pro sefiled a postconviction petition. In support of her petition, sheattached several documents, including the following: (1) anaffidavit, in which defendant averred that her family membersoverheard jurors complaining because they were not allowed tosentence defendant; (2) the affidavit of Randy Berger, in whichhe averred that Darrell Rickey had told him that (a) juror 218had made some "prejudice [sic] remarks" about defendant beforetrial, and (b) Rickey and juror 218 had discussed defendant'spoor work attendance record; and (3) 15 newspaper articlesregarding the incident and the trial proceedings. In April 2001,the trial court dismissed defendant's postconviction petition asuntimely under section 122-2.1 of the Act (725 ILCS 5/122-2.1(West 2000)).

This appeal followed.

A. Proceedings Under the Act

A defendant may proceed under the Act by alleging "thatin the proceedings which resulted in his or her conviction therewas a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both." 725 ILCS 5/122-1 (West 2000). A petition filed under the Actmust "clearly set forth the respects in which petitioner'sconstitutional rights were violated." 725 ILCS 5/122-2 (West2000). The petition shall have attached "affidavits, records, orother evidence supporting its allegations or shall state why thesame are not attached." 725 ILCS 5/122-2 (West 2000).

The Act establishes a three-stage process for adjudicating a postconviction petition (725 ILCS 5/122-1 through 122-8(West 2000); People v. Edwards, 197 Ill. 2d 239, 244, 757 N.E.2d442, 445 (2001)), and this case involves the trial court'sdismissal of defendant's postconviction petition at the firststage. At this stage, the Act does not permit any furtherpleadings from the defendant or any motions or responsive pleadings from the State. People v. Gaultney, 174 Ill. 2d 410, 418,675 N.E.2d 102, 106 (1996). Instead, the court determineswhether the petition alleges a constitutional infirmity thatwould necessitate relief under the Act. Unless positivelyrebutted by the record, all well-pled allegations are taken astrue at this stage. People v. Coleman, 183 Ill. 2d 366, 380-81,701 N.E.2d 1063, 1071 (1998).

Dismissal at the first stage of postconviction proceedings is warranted when the trial court independently reviews thepostconviction petition and determines that "the petition isfrivolous or patently without merit." 725 ILCS 5/122-2.1(a)(2)(West 2000); Edwards, 197 Ill. 2d at 244, 757 N.E.2d at 445. Apostconviction petition is considered frivolous or patentlywithout merit only if the allegations in the petition fail topresent the "'gist of a constitutional claim.'" Edwards, 197Ill. 2d at 244, 757 N.E.2d at 445, quoting Gaultney, 174 Ill. 2dat 418, 675 N.E.2d at 106. The "gist" standard is "'a lowthreshold.'" Edwards, Ill. 2d at 244, 757 N.E.2d at 445, quotingGaultney, Ill. 2d at 418, 675 N.E.2d at 106. To set forth the"gist" of a constitutional claim, the postconviction petition"'need only present a limited amount of detail'" and hence neednot set forth the claim in its entirety. Edwards, 197 Ill. 2d at244, 757 N.E.2d at 445, quoting Gaultney, 174 Ill. 2d at 418, 675N.E.2d at 106.

"In considering a petition pursuant to [section 122-2.1of the Act], the [trial] court may examine the court file of theproceeding in which the petitioner was convicted, any actiontaken by an appellate court in such proceeding[,] and any transcripts of such proceeding." 725 ILCS 5/122-2.1(c) (West 2000). The court should examine those records to determine whether theallegations are positively rebutted by the record. That determination will assist the court in resolving the issue as to whetherthe petition is frivolous or patently without merit. People v.Smith, 326 Ill. App. 3d 831, 840, 761 N.E.2d 306, 315 (2001). Onappeal from a first-stage dismissal, this court reviews de novothe trial court's decision. Edwards, 197 Ill. 2d at 247, 757N.E.2d at 447.

Our supreme court has consistently upheld the first-stage dismissal of a postconviction petition when the record fromthe original trial proceedings contradicts the defendant'sallegations. People v. Rogers, 197 Ill. 2d 216, 222, 756 N.E.2d831, 834 (2001); see People v. Jones, 66 Ill. 2d 152, 157, 361N.E.2d 1104, 1106 (1977) ("A court may also properly dismiss apost[]conviction petition if the record of proceedings at trialshows the petition to be nonmeritorious"); see also People v. DeAvila, 333 Ill. App. 3d 321, 329, 775 N.E.2d 79, 85 (2002)("courts will uphold the summary dismissal of a postconvictionpetition when the record from the original trial proceedingscontradicts the defendant's allegations").

Defendant first argues that the trial court erred bydismissing her postconviction petition. We disagree.

Initially, we note that in People v. Boclair, 202 Ill.2d 89, 97, (2002), the supreme court held that during the first-stage review of a postconviction petition, a trial court may notdismiss the petition as untimely filed. Thus, the trial courterred by dismissing defendant's postconviction petition asuntimely during these first-stage proceedings. However, becausethis court may affirm the trial court's judgment on any basissupported by the record, we determine whether defendant'spostconviction petition presents the gist of a constitutionalclaim.

1. Defendant's Claim That She Received Ineffective

Assistance of Trial Counsel

Defendant first contends that the trial court erred bydismissing her postconviction petition because it stated the gistof a meritorious constitutional claim that her trial counselprovided ineffective assistance when he failed to conduct asurvey concerning the effect of pretrial publicity to supportdefendant's motion for a change of venue, as the trial court hadsuggested. Defendant bases this claim on the court's remarksthat (1) a motion to change venue is best supported by "sophisticated surveys"; and (2) it could not grant defendant's motionbased on the evidence then before it, but the motion was subjectto reconsideration following jury selection. We conclude thatdefendant's petition failed to state the gist of a meritoriousconstitutional claim.

To establish a claim of ineffective assistance ofcounsel, a defendant must satisfy the standard set forth inStrickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S.Ct. 2052 (1984). First, the defendant must prove that counselmade errors so serious, and counsel's performance was so deficient, that counsel was not functioning as the "counsel" guaranteed by the sixth amendment to the United States Constitution(U.S. Const., amend. VI).

Second, the defendant must establish prejudice--thatis, she must prove that a reasonable probability exists that, butfor counsel's unprofessional errors, the result of the proceedingwould have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Further, this prejudice prong of the Strickland test entails morethan an "outcome-determinative" test; the defendant must alsoshow that counsel's deficient performance rendered the result ofthe trial unreliable or the proceeding fundamentally unfair. People v. Evans, 186 Ill. 2d 83, 93, 708 N.E.2d 1158, 1163-64(1999). Because a defendant must satisfy both prongs of theStrickland test, a reviewing court can dispose of a claim ofineffective assistance of counsel solely on the ground that thedefendant did not suffer prejudice without deciding whethercounsel's performance was constitutionally deficient. Evans, 186Ill. 2d at 94, 708 N.E.2d at 1164.

In this case, the record positively rebuts defendant'sclaim that her trial counsel's failure to conduct a survey tosupport her motion for change of venue prejudiced her. SeeRogers, 197 Ill. 2d at 222, 756 N.E.2d at 834. A defendant isentitled to a change of venue as a result of pretrial publicityif a reasonable apprehension exists that she cannot receive afair and impartial trial. People v. Fort, 248 Ill. App. 3d 301,309, 618 N.E.2d 445, 452 (1993). "Exposure to publicity about acase is not enough to demonstrate prejudice because jurors neednot be totally ignorant of the facts and issues involved in acase." People v. Kirchner, 194 Ill. 2d 502, 529, 743 N.E.2d 94,108 (2000). Instead, what is essential is that the jurorsultimately chosen must be able to lay aside impressions oropinions and render a verdict based upon the evidence at trial. People v. Sutherland, 155 Ill. 2d 1, 16, 610 N.E.2d 1, 7 (1992). Thus, the relevant inquiry on appeal is not how much pretrialpublicity occurred, but whether the defendant received a fair andimpartial trial. People v. Lucas, 132 Ill. 2d 399, 422, 548N.E.2d 1003, 1011 (1989).

The record shows that the jury that heard defendant'scase was fair and impartial. Of the 12 jurors selected, only 8had even read or heard about the case. Five of those eightjurors had read or heard initial news accounts of the case buthad read or heard nothing nearer the time of defendant's trial;one juror had only "vaguely" heard about the case; one juror hadheard coworkers talking about a single newspaper article; and theremaining juror had heard others talking about the case monthsbefore voir dire. Each of those eight jurors expressed a willingness to put aside what he or she knew about the case anddecide it based only on the evidence presented at trial. Eachalso stated that he or she could set aside any bias or prejudiceand be open-minded and fair to both sides.

Contrary to defendant's contention, the newspaperarticles and affidavits attached to her postconviction petitiondo not support her claim of ineffective assistance of trialcounsel. Whether jurors had heard about the case prior to voirdire is not the issue. Instead, as earlier stated, the relevantinquiry on appeal is whether the defendant actually received afair and impartial trial. The newspaper articles about defendant's case generally described the circumstances of the murderand defendant's arrest, the charges against defendant and hercodefendants, the police investigation, and the impact of thevictim's death on his surviving family members. The content ofthose articles was not so prejudicial to defendant that thejurors' assertions of impartiality and fairness should be disregarded. In addition, even accepting that postconviction allegations can properly be supported by affidavits containing inadmissible hearsay, the affidavits attached to defendant's petition donot suggest that the jurors who ultimately heard defendant's casewere biased and unfair despite their assertions otherwise.

Because neither the record nor defendant'spostconviction filings support defendant's claim that the jurythat ultimately decided her case was not fair and impartial,defendant fails to state the gist of a meritorious claim that hertrial counsel was ineffective for failing to conduct a surveyconcerning the effect of pretrial publicity to support her motionto change venue. Simply put, because the record establishes thatdefendant received a fair and impartial trial, the fact that hertrial counsel failed to conduct a survey is of no moment. Accordingly, we conclude that the trial court did not err bydismissing defendant's postconviction petition.

In so concluding, we commend the trial court for itshandling of defendant's motion for change of venue. As the courtrecognized, a pretrial ruling denying a defendant's motion tochange venue is subject to reconsideration following jury selection. In this regard, such a ruling is akin to a denial of amotion in limine. See People v. Drum, 321 Ill. App. 3d 1005,1008, 748 N.E.2d 344, 347 (2001) (noting that when a trial courtaddresses a motion in limine on the merits, its ruling is alwayssubject to reconsideration during trial). After all, because thebest evidence of whether a fair and impartial jury can be selected will be the responses of the prospective jurors during thejury selection process, the wisest course for a court to takeoften will be to initially deny the motion for change of venuebecause it is based upon speculation and revisit the matter--either on defendant's motion or sua sponte--once the jury selection process has occurred.

We are not suggesting that a trial court should nevergrant a motion to change venue prior to jury selection. In somecases, the extent or effect of the pretrial publicity may warranta change of venue. See, for example, People v. Taylor, 101 Ill.2d 377, 395, 462 N.E.2d 478, 486-87 (1984) (holding that thetrial court should have granted the defendant's motion to changevenue based on the documented "unprecedented volume of publicity"combined with the jurors' exposure to polygraph information,which was particularly persuasive and highly prejudicial). Inother cases, the State may decide not to oppose the defendant'smotion to change venue. We simply note that a trial court'sdenial of a defendant's pretrial motion to change venue is alwayssubject to reconsideration following jury selection.

2. Defendant's Claim That She Received Ineffective

Assistance of Appellate Counsel

Defendant also contends that the trial court erred bydismissing her postconviction petition because it stated the gistof a meritorious constitutional claim that her appellate counselprovided ineffective assistance when he failed to raise the issueof trial counsel's ineffectiveness "for failing to follow thetrial court's directive" to conduct a survey concerning theeffect of pretrial publicity. We disagree.

A defendant who claims that his appellate counselrendered ineffective assistance must show that (1) the failure toraise the issue on appeal was objectively unreasonable; and (2)this decision prejudiced the defendant. People v. Enis, 194 Ill.2d 361, 377, 743 N.E.2d 1, 11 (2000). Appellate counsel is notobligated to brief every conceivable issue on appeal, and it isnot incompetence of counsel to refrain from raising issues that,in counsel's judgment, are without merit, unless counsel'sappraisal of the merits is patently wrong. Accordingly, unlessthe underlying issues are meritorious, the defendant suffers noprejudice from counsel's failure to raise them on appeal. Peoplev. Haynes, 192 Ill. 2d 437, 476, 737 N.E.2d 169, 190 (2000).

Given our conclusion that trial counsel was not ineffective for failing to conduct a survey, defendant cannot statethe gist of a meritorious claim that her appellate counsel wasineffective for failing to raise on appeal the issue of trialcounsel's ineffectiveness.

Last, defendant argues that the trial court lacked theauthority to order that her DOC wages be withheld and remitted tothe circuit clerk.

Defendant raises this issue for the first time in herappeal from the trial court's dismissal of her postconvictionpetition. In People v. Griffin, 321 Ill. App. 3d 425, 428, 748N.E.2d 1235, 1238 (2001), this court declined to construe the Actas permitting a defendant to raise on appeal from the dismissalof a postconviction petition an issue she never raised in thatpetition. We adhere to Griffin and thus deem this issue forfeited. See also People v. Moore, 189 Ill. 2d 521, 544, 727N.E.2d 348, 360 (2000) (in which the supreme court declined toaddress the merits of the defendant's claim when he first raisedit in his appeal from the dismissal of his amended postconvictionpetition).

Even assuming that defendant had not forfeited thisissue, we conclude that her claim is not cognizable under theAct. In Haynes, 192 Ill. 2d at 464, 737 N.E.2d at 184, thesupreme court discussed proceedings under the Act as follows:

"The [Act] provides a mechanism by whichcriminal defendants can assert that theirconvictions were the result of a substantialdenial of their rights under the UnitedStates Constitution, the Illinois Constitution, or both. [Citation.] An action forpost[]conviction relief is a collateral proceeding, not an appeal from the underlyingconviction and sentence. [Citations.] Inorder to be entitled to post[]convictionrelief, a defendant must establish a substantial deprivation of federal or state constitutional rights." (Emphasis added.)

The issue raised by defendant involves a matter created bystatute involving the payment of costs and fees. This court hasheld that such statutorily created matters do not constitute a"deprivation of federal or state constitutional rights" and,thus, are not cognizable under the Act. See Griffin, 321 Ill.App. 3d at 428, 748 N.E.2d at 1238 (a trial court's failure tohold a hearing regarding a defendant's financial ability toreimburse the State for appointed counsel's fees violates statutory law but "does not constitute any 'deprivation of federal orstate constitutional rights,' much less a 'substantial' one"(emphasis in original)); People v. Guerrero, 311 Ill. App. 3d968, 970, 725 N.E.2d 783, 784-85 (2000) ($5-per-day creditagainst an imposed fine does not establish a substantial deprivation of federal or state constitutional rights).

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

TURNER and APPLETON, JJ., concur.