# People v. Fikara > Appellate Court of Illinois · December 23, 2003 · 345 Ill. App. 3d 144 URL: https://www.frixlaw.com/law-library/cases/9736929 ## Case - **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHAKA ALI FIKARA, A/K/A Eddie Robinson, Defendant-Appellant - **Court:** Appellate Court of Illinois - **Decided:** December 23, 2003 - **Citations:** 345 Ill. App. 3d 144; 280 Ill. Dec. 335; 802 N.E.2d 260 - **Precedential status:** Published - **Opinion:** On rehearing by Hutchinson - **Judges:** Hutchinson, Grometer, Kapala - **Cited by:** 35 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9736929 ## Opinion text Supplemental Opinion Upon Denial of Rehearing PRESIDING JUSTICE HUTCHINSON delivered the opinion of the court: In his petition for rehearing, defendant concedes that the trial court’s July 27, 2001, order was final and immediately appealable. However, defendant asserts that the trial court failed to order the clerk of the circuit court to provide him with immediate notice of the July 27, 2001, adverse judgment as required by Supreme Court Rule 651(b) (134 Ill. 2d R. 651(b)). Defendant therefore contends that he was never admonished as to the necessity of filing a timely notice of appeal from the July 27, 2001, order and that his failure to do so should be excused. Defendant requests that we address the merits of his first two contentions on appeal. Supreme Court Rule 651(b) requires that, upon the entry of a judgment adverse to a defendant in a postconviction proceeding, the clerk of the trial court “shall at once mail or deliver” to the defendant a notice advising him of the entry of the order and advising him of his right to appeal. 134 Ill. 2d R. 651(b). Rule 651(b) provides the form that the notice should take and requires that the defendant be advised of the steps necessary to preserve his right to appeal. 134 Ill. 2d R. 651(b). After a thorough review of the record, we agree with defendant that the clerk of the trial court failed to provide him with the required notice of adverse judgment. The record also reveals that the trial court failed to admonish defendant of the finality of the July 27, 2001, order and of the need to file a notice of appeal within 30 days to preserve his right to appeal. In instances where the requirements of Rule 651(b) have not been satisfied, the reviewing court must treat a defendant’s untimely notice of appeal as a petition for leave to file a late notice of appeal within the contemplation of Supreme Court Rule 606(c) (188 Ill. 2d R. 606(c)). People v. Allen, 7 Ill. App. 3d 249, 251-52 (1972). The reviewing court must then grant the petition and consider the merits raised in the defendant’s appeal. Allen, 7 Ill. App. 3d at 252 . The reviewing court must allow the filing of a late notice of appeal even when the six-month period for seeking leave to file a late notice of appeal provided in Rule 606(c) has already expired. See People v. Meeks, 31 Ill. App. 3d 396, 400 (1975) (noting that a reviewing court has jurisdiction to entertain a late notice of appeal in instances where the defendant received notice of the adverse judgment after the six months provided by Rule 606(c)). As a result of the trial court’s failure to ensure compliance with Rule 651(b) in this case, we must treat defendant’s untimely notice of appeal from the July 27, 2001, order as a petition to file a late notice of appeal and consider defendant’s contentions of error relating to the dismissal of portions of his postconviction petition. See Allen, 7 Ill. App. 3d at 252 . Although we acknowledge that defendant was represented by counsel and present in court at the time the trial court made its ruling disposing of the postconviction petition in its entirety, the trial court’s failure to comply with Rule 651(b) meant that defendant never received the admonitions required by law, and fundamental fairness requires that we consider the contentions raised by defendant. See People v. Foster, 171 Ill. 2d 469, 473 (1996) (holding that reviewing court should entertain appeal where a trial court has failed to admonish the defendant how to preserve his right to appeal, even in instances where the defendant was represented by counsel and counsel was aware of necessary steps to preserve appeal). We thus turn to a consideration of defendant’s contentions of error relating to the trial court’s dismissal of portions of his postconviction petition. As detailed in our initial opinion, defendant contends that the trial court erred in dismissing that portion of his postconviction petition alleging the existence of “newly discovered chlamydia” evidence that purportedly exonerates him of the charged offenses. Defendant also contends that the trial court erred in dismissing that portion of his postconviction petition alleging that he was denied the effective assistance of trial counsel. We will consider each of these contentions in turn. The Post-Conviction Hearing Act (the Act) (725 ILCS 5/122 — 1 et seq. (West 1998)) provides a mechanism by which defendants under criminal sentences in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both. People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). A petition for postconviction relief is not an appeal of the underlying judgment; rather, it is a collateral proceeding. People v. Johnson, 206 Ill. 2d 348, 356 (2002). As such, a postconviction proceeding allows an inquiry only into constitutional issues that were not, and could not have been, adjudicated on direct appeal. Johnson, 206 Ill. 2d at 356 . Issues 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. Johnson, 206 Ill. 2d at 356 . The trial court may dismiss a postconviction petition without a full evidentiary hearing where the petition fails to sufficiently demonstrate a constitutional infirmity that would necessitate relief under the Act. Coleman, 183 Ill. 2d at 380 . We review de novo the dismissal of a post-conviction petition. Coleman, 183 Ill. 2d at 388-89 . We first consider defendant’s assertion that he is entitled to a new trial because the medical evidence demonstrated that he did not have chlamydia. On direct appeal, defendant similarly argued that he could not be guilty of the charged sex offenses because the trial evidence established that the 11-year-old victim had tested positive for chlamydia and that he tested negative for the disease. We rejected this argument, explaining: “The defendant testified that he had been tested and found not to have any sexually transmitted diseases. However, there was also testimony that a specific test for chlamydia is required in order to detect it. During deliberations, the jury sent a note to the trial court asking if there was any medical proof that the defendant did or did not have chlamydia. The defense counsel offered no objection to the trial court’s response that the jury must determine if there was such medical proof. Clearly, it was a question for the jury to determine based upon the evidence before it.” People v. Fikara, No. 2-95-1463, slip op. at 17 (unpublished order under Supreme Court Rule 23). To the extent that defendant’s allegations in his postconviction petition raise similar questions regarding the trial evidence, these allegations are barred under the doctrine of res judicata. People v. Enis, 194 Ill. 2d 361, 375 (2000). In his brief, defendant asserts that his postconviction petition contained “newly discovered evidence” that exonerated him of the charged sex offenses. However, our review of defendant’s petition and its attachments reveals no new medical evidence resolving the question of whether defendant suffered from chlamydia. Although defendant attaches the results from several blood tests taken during the years following his conviction, none of these results specifically reference a test for the presence of chlamydia or indicate whether defendant had the disease. Neither the contents of defendant’s petition and affidavits nor his exhibits support his claim on appeal that he “tested negative for the disease showing that he never had it and couldn’t possibly be the person who infected the victim.” Accordingly, we hold that the trial court correctly dismissed these allegations of the postconviction petition because defendant failed to establish that his constitutional rights were violated. Within defendant’s discussion of the chlamydia evidence, he also asserts that the victim and her sister were incompetent to testify at trial due to their alleged use of psychotropic medications. We agree with the State that this argument could have been raised on direct appeal and that defendant’s failure to do so waives the issue for purposes of this postconviction proceeding. Johnson, 206 Ill. 2d at 356 . Accordingly, we decline defendant’s request to consider the issue on appeal. Defendant’s second contention of error concerning the post-conviction proceedings is that the trial court erred in dismissing that portion of the petition seeking a new trial on the basis of his allegations that his trial counsel was ineffective. Specifically, defendant argues that his trial counsel was ineffective because (1) counsel failed to establish that he never had chlamydia and therefore could not have transmitted the disease to the victim; (2) counsel failed to object to the State’s conduct of carving multiple charges “out of a single offense”; (3) counsel failed to investigate the mental histories of the victim and her sister and to challenge their competence to testify; (4) counsel failed to impeach the victim and her sister with prior inconsistent statements; and (5) counsel failed to object to the use of “tainted evidence.” These issues were not raised on direct appeal, and defendant’s failure to do so waives their consideration for purposes of this postconviction proceeding. See Johnson, 206 Ill. 2d at 356 . However, defendant has also alleged that his appellate counsel was ineffective for failing to raise these issues on direct appeal. The waiver doctrine is inapplicable in instances where the alleged waiver of an issue stems from ineffective assistance of appellate counsel. People v. Haynes, 192 Ill. 2d 437, 476 (2000). We will therefore consider defendant’s allegations in the context of ineffective assistance of appellate counsel. To establish that appellate counsel was ineffective for failing to raise an issue on direct appeal, a defendant must show that (1) his appellate counsel’s failure to raise the issue was objectively unreasonable, and (2) counsel’s decision prejudiced the defendant. People v. Easley, 192 Ill. 2d 307, 328-29 (2000). The sixth amendment right to effective assistance of counsel does not mandate that appellate counsel raise every conceivable argument that could be made. People v. Richardson, 189 Ill. 2d 401, 412 (2000). Counsel’s assessment of which issues to raise and argue will not be questioned unless it was patently wrong. Richardson, 189 Ill. 2d at 412 . Therefore, unless the underlying issues are meritorious, a defendant has suffered no prejudice from counsel’s failure to raise them on appeal. Easley, 192 Ill. 2d at 329 . Initially, we note that appellate counsel did argue on direct appeal that defendant was denied the effective assistance of trial counsel. See Fikara, slip op. at 18-22. Appellate counsel’s argument consisted of 10 instances of trial counsel’s alleged ineffectiveness, including trial counsel’s failure to introduce medical records that purportedly established that defendant did not have chlamydia. In rejecting defendant’s request for a new trial based upon trial counsel’s alleged ineffectiveness, this court concluded that defendant could not establish that, but for his trial counsel’s failures, the jury would have acquitted him of the charged offenses. We explained that the evidence presented in the case was not closely balanced and that our review of the record satisfied us “that defendant’s conviction on the charges in this case was not the result of any failure on the part of *** defense counsel in his representation of the defendant.” Fikara, slip op. at 21. With this background, we address the allegations of ineffective assistance of counsel contained in defendant’s postconviction petition. Defendant’s first allegation of ineffectiveness is that trial counsel was ineffective for failing to establish that defendant did not have chlamydia. On direct appeal, we held that defendant was not denied the effective assistance of trial counsel as a result of counsel’s failure to introduce a medical report that indicated the results of a test for chlamydia. In so holding, we stated that, “even assuming that the document in question established that the defendant did not suffer from the disease, there was more than sufficient other evidence of the defendant’s guilt in the case.” Fikara, slip op. at 19. In light of our prior determination, we conclude that an appellate argument predicated upon trial counsel’s ineffectiveness for failing to prove that defendant did not have chlamydia would be without merit. Defendant’s second allegation of ineffectiveness is that trial counsel failed to argue that the indictment carved multiple charges “out of a single offense.” However, defendant did not make this allegation in his postconviction petition; therefore, we deem it waived. People v. Rovito, 327 Ill. App. 3d 164, 178-79 (2001). We thus decline to consider whether appellate counsel was ineffective for failing to raise this issue on direct appeal. Defendant’s third allegation of ineffectiveness is that trial counsel failed to challenge the competency of the victim and her sister based on their alleged use of psychotropic medication. As noted by the trial court, the ingestion of psychotropic medication does not give rise to a bona fide doubt as to a witness’s competency. See People v. Mitchell, 189 Ill. 2d 312, 331 (2000). Defendant offers no evidence, other than his own assertions, that these witnesses were incompetent to testify. Our review of the record reveals no indication that these witnesses had mental conditions that affected their ability to perceive, record, recollect, or narrate. See People v. Sykes, 341 Ill. App. 3d 950, 973 (2003). Additionally, as noted by this court on direct appeal, the other evidence admitted at trial corroborated the testimony of these witnesses as to defendant’s sexual abuse. Fikara, slip op. at 9-10. The children’s baby-sitter testified that she observed defendant standing in front of the victim, who was naked, with his pants and underwear at his knees. The victim’s mother and a police officer testified that the victim told them of the sexual acts defendant committed against her. Finally, medical testimony established that the victim had prior sexual contact. In light of this corroborative evidence, a challenge to the competency of the victim and her sister would not have resulted in defendant’s acquittal on the charges. Therefore, we hold that appellate counsel was not ineffective for failing to raise this issue on direct appeal. Defendant’s final two allegations of ineffectiveness are that trial counsel failed to impeach the victim and her sister with their prior inconsistent statements or to object to the use of “tainted evidence.” We conclude that these contentions have been waived on appeal as a result of defendant’s failure to support them with coherent argument and authority. See 177 Ill. 2d R. 341(e)(7). Defendant’s arguments on appeal here consist of short conclusory statements, devoid of any reference to the record on appeal or explanation specifying the facts underlying the claims. This court is entitled to a well-reasoned argument, along with citation of relevant authority. People v. Williams, 267 Ill. App. 3d 82, 86 (1994). Defendant’s failure to do so waives these issues on appeal. For all of the foregoing reasons, we agree with the trial court that defendant’s postconviction petition fails to establish that he was denied the effective assistance of appellate counsel. Accordingly, we hold that the trial court correctly determined that these allegations failed to sufficiently demonstrate a constitutional infirmity and properly dismissed these allegations of defendant’s postconviction petition. We affirm the judgment of the circuit court of Lee County disposing of defendant’s postconviction petition. Defendant’s petition for rehearing is denied. Affirmed. GROMETER and KAPALA, JJ., concur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9736929. Public record. Not legal advice.