Opinion
No. 1-12-3519
06-25-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LATHERN LAMPKINS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 06 CR 8798
Honorable
James M. Obbish,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Pucinski and Mason concurred in the judgment.
ORDER
¶ 1 Held: We affirm the circuit court's summary dismissal of defendant's pro se post-conviction petition where defendant attempts to raise an issue on appeal that was not included in his petition. ¶ 2 Defendant Lathern Lampkins appeals from the summary dismissal of his pro se petition for relief under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 et seq. (West 2012). On appeal, Lampkins contends that he asserted in his petition a meritorious claim that appellate counsel was ineffective for failing to challenge on direct appeal the 15-year add-on penalty to his aggravated criminal sexual assault sentence for possessing a firearm at the time he committed the offense. We affirm. ¶ 3 The record shows that on March 19, 2006, 17-year-old Lampkins and codefendant Robert Falls, who is not a party to this appeal, saw Kevin Porter exit his front door at 2544 East 81st Street and walk toward a vehicle parked on the street. Lampkins and codefendant approached Porter, pointed guns at his head, and demanded his wallet. Porter indicated that he did not have his wallet, and, holding him at gunpoint, they searched Porter's vehicle and then took him back into the house. After Porter opened the door to his residence, defendants stole several items including bank cards and jewelry. While in the house, Lampkins pointed a gun at Porter's girlfriend Katherine Benson and sexually assaulted her. At gun point, defendants then took Porter to a bank and forced him to withdraw money from a cash station. Porter complied and gave Lampkins the cash. While defendants took Porter to the cash station, Benson called the police. Defendants dropped off Porter in an alley and were arrested shortly after. Lampkins and codefendant were charged on April 20, 2006, with numerous counts in connection with this incident, including aggravated criminal sexual assault (ACSA), home invasion, armed robbery, vehicular hijacking, kidnaping, and unlawful restraint. ¶ 4 Following a 2008 bench trial, Lampkins was convicted of ACSA with a firearm, two counts of home invasion, armed robbery, and vehicular hijacking. He was sentenced to 27 years' imprisonment for aggravated criminal sexual assault, which included a 15-year add-on for being armed with a firearm, to run consecutively to the four concurrent terms of 8 years' imprisonment imposed on his remaining convictions. This court affirmed that judgment on direct appeal after allowing appellate counsel's motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). People v. Lampkins, No. 1-08-2535 (2010) (unpublished order pursuant to Supreme Court Rule 23). ¶ 5 On June 13, 2012, Lampkins filed a pro se post-conviction petition, alleging, in pertinent part, that appellate counsel was ineffective for failing to raise any issues on his behalf. In particular, Lampkins maintained that appellate counsel did not raise any issue on appeal "before-during-and or after reviewing the petitioner transcripts," was in "dis-attude" when counsel stated that there were no issues of arguable merit and filed a motion to withdraw, and was ineffective for "not filing ineffective assistance on the trial counsel for not preserving issues by objecting so that the defendant could [have] had meritorious issues to raise in his appeal." According to Lampkins, appellate counsel's performance fell below an objective standard of reasonableness and prejudiced him. ¶ 6 As evidence of appellate counsel's ineffectiveness, Lampkins attached to his petition an October 15, 2009, letter written by his appellate attorney advising him to dismiss his appeal because the sentencing issues she could argue had a very low chance of success, and raising them would bring to light a sentencing error that was in his favor. In particular, appellate counsel stated that because he was convicted of armed robbery with a firearm, he should have received "15 years on top of the 8 years [he] received." Therefore, counsel indicated that the court should have imposed a 23-year sentence for his armed robbery with a firearm conviction, making his total sentence for all crimes 50 years instead of 35 years. Counsel concluded the letter by advising defendant to dismiss his appeal to avoid the risk of exposing the sentencing error, which would result in him receiving a higher sentence. Lampkins also attached the appellate counsel's motion to withdraw as counsel pursuant to Anders. ¶ 7 On August 3, 2012, the circuit court dismissed Lampkins' petition as frivolous and patently without merit. In doing so, the court found, in relevant part, that because Lampkins' underlying claims of ineffective assistance of trial counsel were without merit, the ineffective assistance of appellate counsel claim based on appellate counsel's failure to argue ineffective assistance of trial counsel was likewise without merit. ¶ 8 In this appeal, Lampkins challenges the propriety of that dismissal, contending that he raised an arguable claim of ineffective assistance of appellate counsel. He maintains that appellate counsel was ineffective for failing to challenge on direct appeal the 15-year add-on penalty to his sentence for possessing a firearm at the time he committed ACSA. Specifically, Lampkins asserts that the add-on was unconstitutional because it violated the proportionate penalties clause of the Illinois constitution where the sentence for ACSA with a firearm possessed the same elements as armed violence based on sexual assault, but the offenses had different penalties. We review the summary dismissal of a post-conviction petition de novo. People v. Tate, 2012 IL 112214, ¶ 10. ¶ 9 The threshold question, as raised by the State, is whether the allegation was included in Lampkins' petition because a claim that is not raised in the petition cannot be argued for the first time on appeal. People v. Pendleton, 223 Ill. 2d 458, 475 (2006) (defendant forfeited issue not raised in his post-conviction petitions), citing People v. Jones, 213 Ill. 2d 498, 505 (2004) (supreme court "has generally held that a claim not raised in a petition cannot be argued for the first time on appeal") and People v. Davis, 156 Ill. 2d 149, 158-60 (1993) (claim not raised in petition is waived). In Pendleton, the supreme court expressly rebuked the appellate court for ignoring "established principles of procedural default" by considering a claim not raised in the petition. Pendleton, 223 Ill. 2d at 470-71, 475. We liberally construe the petition to determine whether an allegation is sufficiently presented in the petition so that it may be raised on appeal. Jones, 213 Ill. 2d at 505. ¶ 10 Lampkins acknowledges that the issue now raised on appeal (ineffective assistance of appellate counsel for failing to challenge the 15-year add-on in the ACSA statute) was not explicitly articulated in the petition itself. Lampkins argues that this issue can be gleaned from the petition, if liberally construed, based on (1) the general allegation in the petition that he received ineffective assistance of counsel on direct appeal, and (2) the attachment to the petition of a letter from appellate counsel to defendant stating that there were sentencing issues she could have raised. ¶ 11 Limpkins' liberal construction interpretation is flawed. The petition set forth more than 10 specific instances at trial which allegedly impacted defendant's right to cross-examination and maintained that these instances demonstrated ineffective assistance of trial counsel for failing to make objections and preserving the issues for appeal. In turn, Lampkins alleged that his appellate counsel was ineffective for failing to raise these specified claims of ineffective assistance of trial counsel. In particular, Lampkins generally alleged as follows:
"Petitioner was rendered ineffective assistance of trial counsel for failing to properly preserve for review evidentiary errors concerning relevance, lack of foundation, prejudice, and discovery. Petitioner received ineffective assistance of counsel from appellante [sic] counsel for failing to argue these issues on appeal."¶ 12 Lampkins also faulted appellate counsel for failing to raise any issues on direct appeal, attaching as support the Anders motion to withdraw and a letter from counsel. The attached letter was dated October 13, 2009, and sent by appellate counsel to Lampkins advising him to dismiss his appeal to avoid the risk of having the mandatory 15-year firearm enhancement added on his 8-year sentence for armed robbery because he was armed with a firearm. With the 15-year add-on for armed robbery with a firearm, Lampkins' aggregate sentence would increase to 50 years from 35 years. Appellate counsel informed Lampkins that his sentence for armed robbery "was incorrect, but it was an incorrect sentence in your favor." Appellate counsel further advised Lampkins that "there are only a few sentencing issues that I can argue in your brief if we go forward. However, these sentencing issues have a very low chance of success and will unfortunately draw attention to the sentencing error in your case." ¶ 13 These allegations, even liberally construed, do not present the current claim of ineffective assistance of appellate counsel for failing to challenge the sentence imposed for ACSA. The petition itself makes no reference to sentencing and the only allegation directed at the ineffectiveness of appellate counsel related to appellate counsel's failure to raise the ineffectiveness of trial counsel for the specific, enumerated reasons stated in the petition. Furthermore, the references in appellate counsel's letter to Lampkins are only directed at the sentence imposed for armed robbery. Lampkins was convicted and sentenced on multiple offenses: ACSA with a firearm, two counts of home invasion, armed robbery, and vehicular hijacking. We find that the allegations in the petition, considered with the information in appellate counsel's letter, do not remotely infer or suggest the issue now attempted on appeal, i.e., whether direct appeal counsel was ineffective for failing to challenge the 15-year add-on provision in the ACSA statute. See People v. Cathey, 2012 IL 111746, ¶ 21 (appellate court erred by reaching issue not raised in defendant's post-conviction petition); People v. Cole, 2012 IL App (1st) 102499, ¶¶ 13-14 ("implicit" claims of ineffective assistance of appellate counsel do not fall within "liberal construction" standard for review); People v. Coleman, 2011 IL App (1st) 091005, ¶¶ 23-27 (appellate counsel's interpretation was rejected because argument was not raised in post-conviction petition). ¶ 14 As the supreme court noted in Pendleton, 223 Ill. 2d at 476, Lampkins is free to pursue any defaulted claims he believes to be of merit by filing a successive post-conviction petition in the circuit court in accordance with the "cause and prejudice" guidelines set forth in People v. Pitsonbarger, 205 Ill. 2d 444 (2002). See also 725 ILCS 5/122-1(f) (2012) (codifying cause-and-prejudice test effective January 1, 2004). ¶ 15 We affirm the judgment of the circuit court. ¶ 16 Affirmed.