source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINCENT MARTINEZ, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 89—1556
    Opinion filed December 28,1992.
    Rehearing denied April 12,1993.

      Morton L. Zaslavsky, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb, Veronica X. Calderon, and Karen H. Iwasaki, Assistant State’s Attorneys, of counsel), for the. People.
   JUSTICE CAMPBELL

delivered the opinion of the court;

Following a jury trial in the circuit court of Cook County, defendant Vincent Martinez was found guilty of murder and concealment of a homicidal death. Defendant was sentenced to 30 years’ imprisonment. Defendant now appeals his conviction. For the reasons which follow, we affirm.

The record on appeal indicates the following facts. Prior to trial, defendant moved to suppress two oral and two written statements he made to the police on May 19, 1987. Following a hearing, the trial court denied the motion.

Following jury selection and opening statements, the State called Detective Kenneth Polzin, Jr., of the Kenosha County, Wisconsin, sheriff’s department as a witness. Detective Polzin testified that on the afternoon of May 17, 1987, he was assigned to investigate the discovery of a body in Bristol Township. He testified that photographs depicted the scene, including a charred body, with an address book and folded court records to the left side of the body. The photographs also indicated that trees in the immediate area appeared burnt. Detective Polzin took custody of the address book and court records for further examination. Detective Polzin testified that on May 18, 1987, it was determined from fingerprint records that the body was that of Amulfo Ortuno.

Kenosha County medical examiner and pathologist Dr. John San-son testified that he viewed the body on May 17, 1987, and performed an autopsy on May 18, 1987. Dr. Sanson opined that the body was dumped within 12 to 24 hours before he viewed it at 4:30 p.m. on May 17,1987.

Dr. Sanson testified that an external examination of the body indicated an extensive burning and charring of the body. Dr. Sanson also testified that the small amount of carbon monoxide present in the body indicated that the person had died before the body was burned. The external exam also showed multiple contusions on the skin on top of the head and forehead. The contusion on the forehead could have been caused by a blow from a piece of wood or the base of a knife, but was inconsistent with a blow from a blunt object, such as a fist. The other contusions could have been caused by a fist or other blunt object.

Ultimately, Dr. Sanson testified that the death was a homicide caused by strangulation of the windpipe. The external examination indicated hemorrhaging in the area of the muscles around the windpipe. The internal investigation indicated hemorrhaging of tissue covering the windpipe inside the bone.

Delores Gouty testified that on May 17, 1987, she was defendant’s upstairs neighbor in a three-story building. Gouty stated that on May 17, 1987, at about 1 a.m., she heard noises coming from defendant’s apartment. The noises sounded like a scuffle. Gouty went to her dining room window, which was open. She looked down and could see a light on in defendant’s apartment. Gouty testified that she heard a voice, but could not make out what it was saying. As Gouty returned to her bedroom, she heard a voice she did not recognize saying “Help. Police. Help.” A few minutes later, Gouty heard footsteps coming up the back stairs. She then heard keys rattling and the door to defendant’s back porch being unlocked. Gouty then heard footsteps hurrying along the kitchen floor and back down the rear stairway.

Gouty testified that she got out of bed and went to her bedroom window. She could see defendant’s car parked right at the curb on Damen. She also saw a tall man opening and unlocking doors to defendant’s car. Gouty testified that she returned to bed, but rose again upon hearing the ground-floor door slam shut. From her bedroom window, Gouty saw the tall man and defendant drag a man from the building and put this third man in the rear seat of defendant’s car. The tall man then drove away in defendant’s car, with defendant in the passenger seat and the third man in the rear of the car. Gouty identified defendant in court.

Chicago police sergeant Casey Orr indicated that on May 19, 1987, he was a detective with the violent crimes unit. On the morning of May 19, 1987, Orr and his partner, Jantes Spencer, were investigating the Ortuno homicide. At about 11 a.m., two detectives from Kenosha (named Polzin and Zielsdorf) arrived at Orr’s office. The four detectives proceeded to an office building on La Salle Street in search of defendant, whom Orr identified in court. The detectives met defendant between 11:30 a.m. and noon. Orr testified that he asked defendant to accompany him to the police station, to which defendant agreed.

At the police station, defendant was placed in an interview room. Orr testified that he informed defendant of his constitutional rights. According to Orr, defendant indicated that he would answer Orr’s questions. In the presence of Zielsdorf, defendant told Orr that on the night in question, defendant had attended a party and had not returned home the entire evening. Orr testified that he told defendant that this was contrary to other information he had in his possession.

According to Orr, defendant then stated that on the night in question, he had been with his friends: Chico, Lefty and Edwin. After an evening of drinking, they dropped Edwin at home and the three men went to defendant’s apartment. Chico and Lefty got into an argument, which escalated into a fight. Lefty punched Chico in the head and choked him. Chico fell unconscious to the floor. Defendant and Lefty dragged Chico out to defendant’s car. Defendant and Lefty drove north on Route 41 toward Kenosha. Chico stopped breathing on the way to Wisconsin. Upon reaching Kenosha County, they found a secluded area where they pulled Chico’s body from the car, poured gasoline on it and set the body on fire. Defendant and Lefty then returned to Chicago.

Orr testified that defendant then elaborated on this version of events. Initially, defendant and Chico argued about Chico’s alleged involvement with defendant’s wife. Defendant told Orr that he punched Chico in the face, then went into the kitchen, got a knife and threatened to kill Chico, at which point the argument subsided. While defendant was returning the knife to the kitchen, Chico and Lefty renewed an earlier argument. Defendant saw that Lefty had Chico in a hammerlock around the neck and was punching him. When Lefty let go, Chico fell to the floor and had difficulty breathing. After a few moments, Chico stopped breathing. Defendant told Lefty that he thought Chico was dead; Lefty laughed. Defendant told Lefty they had to remove Chico’s body from the apartment because his wife was coming home.

The two men loaded Chico’s body into defendant’s car. While driving around the neighborhood, Lefty suggested stabbing the body and dumping it in a nearby alley. Defendant responded, “No, the police will figure out who he is and what happened.” Defendant suggested driving to Wisconsin to dump the body in a field. En route to Wisconsin, the two men decided to burn the body, stopping at one gas station to buy a gasoline can and a gallon of gasoline and another station to buy matches. Lefty struck the match that burned Chico’s body.

Orr testified that defendant told him that after disposing of Chi-co’s body, defendant took Lefty home. Defendant did not return home after seeing a squad car parked in front of his building. Instead, defendant went to his brother’s home and later to his father’s home. While at his father’s home, defendant phoned Edwin and told him that “Chico is dead — we killed him.” Orr testified that defendant stated that he ultimately contacted his wife; the two spent the night in a hotel..

Detective Jon Cole testified that on May 22, 1987, he recovered a gasoline can from the home of defendant’s brother.

Assistant State’s Attorney Richard Stevens testified regarding two written statements made by defendant on May 19, 1987. Stevens stated that defendant was informed of his constitutional rights before making these statements. Stevens further testified that defendant told him that he could not read English. Stevens believed defendant understood English, but had a court reporter take down the second written statement so that an independent person was involved. Stevens read the first written statement; the second was published to the jury. Stevens testified regarding corrections made by himself and defendant to each statement. The contents of the first written statement are substantially similar to defendant’s earlier oral statements to Orr. The first written statement also identifies Lefty as Mauricio Sanchez and Chico as Arnulfo Ortuno.

Defendant testified that he was 34 years old, bom and raised in Chicago. Although he spoke English, he could read neither English nor Spanish. According to defendant, when the police arrived at his place of employment, Orr stated that he wanted to ask defendant about an automobile accident. Defendant indicated that he did not wish to answer questions, at which point Orr stated that if he did not go to the police station, defendant would be dragged from the building. According to defendant, once he was put in the interview room at the police station, he told Orr he wanted to see his lawyer and gave Orr the lawyer’s business card. Orr refused the card. Defendant spoke to Orr only after Orr poked defendant’s chest and legs. Defendant testified that he was never informed of his constitutional rights, though he knew he had a right to an attorney.

Defendant further testified that after drinking and returning Edwin Roldan to his home, defendant, Lefty and Chico went back to defendant’s home and resumed drinking. Defendant got into an argument with Chico because Chico swore in defendant’s home. Defendant slapped Chico twice, but did not throw a punch. According to defendant, Chico threatened his life, which prompted defendant to get a knife from the kitchen. Defendant admitted that he may have threatened to kill Chico. Defendant held the knife to Chico’s cheek, then put the knife back in the kitchen.

Returning from the kitchen, defendant saw Lefty choking and hitting Chico with something. Defendant testified that he saw Lefty throw a knife over the couch. It looked to defendant as if Chico stopped breathing shortly after falling to the floor.

Defendant stated that Lefty was over 6 feet tall, had a black belt in karate and was a leader of a gang called the Latin Kings. Defendant further testified that Lefty made him help put Chico’s body in the back of defendant’s car, buy gasoline and matches and pour gasoline on the body. Defendant stated that he complied with Lefty's orders out of fear that he would also be killed. Defendant denied suggesting that disposing of the body would cause the police to discover what happened. Defendant testified that he heard Chico breathe while in defendant’s car. According to defendant, upon returning to Chicago, Lefty collected and disposed of Chico’s clothes.

Defendant testified that he parked his car across the street from his building, but did not enter his apartment. He and his wife spent the following night at a motel out of fear of Lefty. According to defendant, he told Edwin Roldan that he and Lefty killed Chico because he had believed that the gasoline caused Chico’s death. Defendant denied killing Chico.

The' parties stipulated that if the Reverend Willis Darling were called to testify, he would testify that defendant’s reputation in the community for honesty, integrity and truthfulness was good.

Edwin Roldan testified that on the night in question, he had been drinking beer with defendant, Lefty and Chico, but defendant drove him home at about 10 p.m. According to Roldan, he spoke with defendant outside of Roldan’s apartment the following day. Roldan testified that defendant told Roldan that Chico was dead, stating that “we killed him” and “we beat him up, we choked him.” Defendant also told Roldan that defendant had poured the gasoline on Chico and Lefty lit the body on fire. According to Roldan, defendant stated that Chico was killed for having a “big mouth,” having told defendant’s wife that defendant was “messing around with other girls.” Roldan stated that defendant told him they had to kill Chico.

Following closing arguments and deliberations, the jury found defendant guilty of murder and concealment of a homicidal death. Defendant was sentenced to 30 years’ imprisonment. Defendant now appeals.

I

Defendant argues that the State failed to prove him guilty of murder beyond a reasonable doubt. Defendant contends that Sanchez, a/k/a Lefty, committed the murder. The relevant inquiry on appeal is whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, after viewing the evidence in the light most favorable to the prosecution. (People v. Jimerson (1989), 127 Ill. 2d 12, 43-44, 535 N.E.2d 889, 903.) It is axiomatic that determining the credibility of witnesses and the weight to be given to their testimony is the function of the trier of fact. Mere conflicting evidence does not mandate reversal. This court will not disturb a guilty verdict unless the evidence is so improbable or unsatisfactory that it raises a reasonable doubt as to defendant’s guilt. People v. Brandon (1990), 197 Ill. App. 3d 866, 874, 557 N.E.2d 1264, 1269.

The State notes that the jury in this case was instructed on the theory of accountability. A person is accountable for the conduct of another if “[ejither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (111. Rev. Stat. 1987, ch. 38, par. 5 — 2(c).) Consent to or mere knowledge of the commission of a crime does not constitute the aiding, abetting, planning or commission of that offense. (People v. Reid (1990), 136 Ill. 2d 27, 61, 554 N.E.2d 174, 190.) Nor does the mere presence of a defendant at the scene of the crime render him or her accountable (Reid, 136 Ill. 2d at 61, 554 N.E.2d at 190; People v. Ruiz (1982), 94 Ill. 2d 245, 256, 447 N.E.2d 148, 152; People v. Ruckholdt (1984), 122 Ill. App. 3d 7, 10, 460 N.E.2d 847, 850), even when coupled with defendant’s flight from the scene or knowledge that a crime was being committed. Reid, 136 Ill. 2d at 61, 554 N.E.2datl90.

On the other hand, active participation in an offense is not a prerequisite to establishing accountability. (See Ruiz, 94 Ill. 2d at 254, 447 N.E.2d at 151.) Evidence of events surrounding and following the commission of the crime is competent to show participation in the crime itself. (Ruiz, 94 Ill. 2d at 257, 447 N.E.2d at 152.) For example, “proof that the defendant was present during the perpetration of the offense, that he maintained a close affiliation with his companions after the commission of the crime, and that he failed to report the crime are all factors which the trier of fact may consider in determining the defendant’s legal accountability.” (Ruckholdt, 122 Ill. App. 3d at 11, 460 N.E.2d at 850.) Defendant’s flight from the scene may also be considered. People v. Dotson (1986), 143 Ill. App. 3d 135, 142, 492 N.E.2d 903, 907.

In this case, the expert medical testimony established strangulation as the cause of death. Defendant testified that Lefty strangled and beat Chico on the head. Defendant also admitted to holding a knife to Chico’s face and threatening to kill him just prior to his death. Orr testified that defendant admitted to punching Chico in the face. The State argues that the blow to Chico’s forehead with the base of a knife was delivered by defendant rather than Lefty. According to defendant, he watched Lefty strangle Chico, then assisted Chico in loading the body into the back of defendant’s car. Orr testified that defendant dissuaded Lefty from stabbing the body and dumping it in a nearby neighborhood, suggesting that the body be disposed of in Wisconsin in order to avoid detection by the police. Defendant accompanied Lefty to Wisconsin, purchasing gasoline and matches along the way. Defendant poured the gasoline on Chico’s body. Orr testified that defendant avoided returning to his apartment after seeing a police car in front of the building; instead, defendant and his wife stayed in a motel. Edwin Roldan testified that defendant told him that “we killed him” and “we beat him up, we choked him.” At no time did defendant attempt to notify the police about the matter. Defendant offered testimony which tended to place this evidence in a more exculpatory light or even contradicted this evidence, but it is the jury, rather than this court, that weighs the credibility of the witnesses. Viewed in the light most favorable to the State, the record supports the jury’s verdict finding defendant accountable for the murder of Arnulfo Ortuno.

The cases defendant relies upon for support are easily distinguishable from this case. For example, in People v. Hoskins (1990), 203 Ill. App. 3d 45, 54, 560 N.E.2d 1004, 1010, the codefendant was not present during the commission of the offense. In People v. Williams (1986), 140 Ill. App. 3d 784, 787, 489 N.E.2d 28, 30, a robbery case, the State failed to establish that the defendant knew the robber. In People v. Deatherage (1984), 122 Ill. App. 3d 620, 624, 461 N.E.2d 631, 634, this court held that the State failed to show that the defendant, who was present in an apartment during a narcotics transaction and may have been aware of the transaction, was not an innocent bystander. In People v. Carpenter (1979), 74 Ill. App. 3d 770, 774-75, 393 N.E.2d 50, 54, the defendant had been involved in a fight with the victim 15 to 20 minutes before the death of the victim at the hand of the codefendant, but the codefendant did not witness this fight and there was no evidence of joint action by the defendants. In this case, the record indicates involvement on the part of defendant and supports a finding of accountability for the murder.

II

Defendant contends that the trial court erred in granting a motion in limine excluding evidence that Sanchez, a/k/a Lefty, was indicted for the murder of Arnulfo Ortuno. Defendant is required to raise the issue both by objection at trial and in his written post-trial motion to preserve the issue for appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Here, defendant failed to object to the court’s ruling in his post-trial motion; thus, the argument is waived.

Even if the argument had been preserved for review, it would not have prevailed. “An accused may attempt to prove that someone else committed the crime with which he is charged, but that right is not without limitations.” (People v. Enis (1990), 139 Ill. 2d 264, 281, 564 N.E.2d 1155, 1161.) For example, in People v. Pryor (1988), 170 Ill. App. 3d 262, 524 N.E.2d 700, it appeared from the record that the defendant was barred from introducing a certified copy of a codefendant’s guilty plea and indictment. (Pryor, 170 Ill. App. 3d at 270, 524 N.E.2d at 705.) This court upheld the exclusion because such evidence shed little light on defendant’s guilt or innocence; even if it showed the codefendant’s guilt, it did not exonerate the defendant. Pryor, 170 Ill. App. 3d at 270, 524 N.E.2d at 705.

In this case, defendant sought to introduce the Sanchez indictment to show that Sanchez murdered Ortuno. However, as in Pryor, the jury here was instructed on the theory of accountability. Thus, even if we were to conclude that the indictment was proof of Sanchez’ guilt, which we do not conclude, it would also tend to prove the State’s case. Moreover, the theory of accountability does not require that Sanchez be prosecuted for or convicted on the offense. (111. Rev. Stat. 1987, ch. 38, par. 5 — 3.) The record indicates that defendant was permitted to pursue the theory that Sanchez was solely responsible for the murder throughout his trial. Thus, defendant has not shown that the exclusion of the indictment was an abuse of discretion.

The cases cited by defendant in support of his argument are inapposite. In People v. Osborne (1983), 114 Ill. App. 3d 433, 451 N.E.2d 1, this court held that barring a witness from corroborating a defendant’s alibi was too harsh a remedy for a violation of discovery rules. In People v. Currie (1980), 84 Ill. App. 3d 1056, 1062, 405 N.E.2d 1142, 1147, this court upheld the trial court’s exclusion of evidence regarding police conduct in unrelated incidents.

III

Defendant contends that he was denied a fair trial because the trial court treated the defense attorneys with disrespect. Defendant refers to three places in the record where this disrespect is allegedly shown. However, the record does not indicate that defendant objected at any of these points in the record. Nor does defendant’s post-trial motion raise the issue. Consequently, the issue is waived.

Assuming arguendo that the issue was not waived, we note that the cumulative effects of partial or biased remarks from the bench may deprive a defendant of a fair trial in a close case. (See People v. Pressley (1987), 160 Ill. App. 3d 858, 865, 513 N.E.2d 921, 926.) On the other hand, a trial judge is permitted a limited amount of impatience with counsel and an isolated remark may not warrant a reversal. (See Pressley, 160 Ill. App. 3d at 865, 513 N.E.2d at 926.) In this case, a review of the record indicates that this case falls into the latter category, not warranting reversal.

IV

Defendant argues that he was denied a fair trial when the trial court permitted the State to refer to one of defendant’s statements as a “story.” Defendant relies on a number of Hlinois cases holding that a prosecutor may not offer his personal opinion on a defendant’s testimony. However, defendant failed to raise this issue in his post-trial motion; thus, it is waived.

Even if defendant had not waived the argument, it would not have persuaded this court. A “story” may be defined as “[t]he narration of an event or series of events, either true or fictitious." (Emphasis added.) (American Heritage Dictionary 1201 (2d Coll. ed. 1982).) Thus, the term does not necessarily denote an opinion that defendant was untruthful. Moreover, the record indicates that defendant related several differing versions of events to the police. Consequently, even if the prosecutor was implying that he believed defendant was less than truthful, use of the term was not improper.

V

Defendant contends that the trial court erred in rejecting his request for a voluntary manslaughter instruction. The record indicates that defendant tendered a second degree murder instruction at trial, which the trial court refused because the second degree murder statute was not in effect at the time of the offense in this case. As defendant did not tender a voluntary manslaughter instruction, the argument is waived. See People v. Huckstead (1982), 91 Ill. 2d 536, 543, 440 N.E.2d 1248,1251.

Even if the issue had been preserved, defendant’s argument is unpersuasive. In a typical murder trial, it is error to refuse instructions on manslaughter if the record holds evidence which would reduce the crime to the lesser offense. (See People v. Whiters (1990), 204 El. App. 3d 334, 339, 562 N.E.2d 325, 328, affd (1992), 146 Ill. 2d 437, 588 N.E.2d 1172.) But the sole case involving voluntary manslaughter relied upon by defendant is People v. Robinson (1987), 163 Ill. App. 3d 754, 777, 516 N.E.2d 1292, 1309, in which this court held that where defendant is entitled to a self-defense instruction, a trial court must also give a voluntary manslaughter instruction if requested. (See Robinson, 163 Ill. App. 3d at 777, 516 N.E.2d at 1309.) Defendant did not raise self-defense as an issue in this case.

Defendant also contends that the trial court erred in refusing an instruction on involuntary manslaughter. A defendant prosecuted on an accountability theory may be entitled to an involuntary manslaughter instruction. (See People v. Miscichowski (1986), 143 Ill. App. 3d 646, 654-55, 493 N.E.2d 135, 140-41.) Involuntary manslaughter differs from murder, which requires that defendant have the intent to kill or cause great bodily harm or knowledge that his or her acts create a strong probability of such a result. (See People v. Austin (1990), 207 Ill. App. 3d 896, 899, 566 N.E.2d 492, 494.) A person commits involuntary manslaughter when he or she unintentionally causes the death of a person by a reckless act which is likely to cause death or great bodily harm to another. (See Ill. Rev. Stat. 1985, ch. 38, par. 9— 3(a).) Thus, an involuntary manslaughter instruction is unnecessary when the nature of the killing defeats any assertion of reckless or inadvertent behavior. See People v. Trotter (1988), 178 Ill. App. 3d 292, 298, 533 N.E.2d 89, 92.

As the above discussion indicates, the difference between involuntary manslaughter and murder is the mental state involved. Mental states are typically not proved by direct evidence; rather, intent may be inferred from the character of the acts and circumstances involved in an offense. (People v. Summers (1990), 202 Ill. App. 3d 1, 10, 559 N.E.2d 1133, 1138.) In this case, the record indicates that Chico died from strangulation of the windpipe while receiving blows to the head from both a blunt instrument and an object such as the base of a knife. Such evidence supports the conclusion that Lefty intended to kill or do great bodily harm to Chico. (Cf. People v. Smith (1966), 71 Ill. App. 2d 446, 454-55, 219 N.E.2d 82, 86-87 (placing leather belt around victim’s neck and dragging victim such that breathing was cut off is indicative of intent to murder).) Defendant has not pointed to any evidence indicating that this strangulation was merely inadvertent or reckless. Indeed, Edwin Roldan testified that defendant told him that defendant and Lefty had to kill Chico because he had a “big mouth” and could no longer be trusted. Consequently, the refusal of the involuntary manslaughter instruction was not in error.

Defendant primarily relies on Whiters, in which a heated domestic quarrel resulted in death. The factual differences between that case and this one are numerous. (See Whiters, 204 Ill. App. 3d at 339, 562 N.E.2d at 328.) For example, defendant in this case did not attempt to summon help at any time.

VI

Defendant argues that the trial court erred by refusing to excuse a venireperson for cause after she stated that her verdict might be affected by the fact that her daughter was beaten and choked 15 years ago. The record shows that defendant struck this person with a peremptory challenge and did not use all of the peremptory challenges allotted to him by the trial court. Defendant has failed to show that he was forced to accept a juror which he otherwise would have struck. Thus, defendant has failed to demonstrate unfair prejudice that would warrant a reversal. People v. Foster (1990), 195 Ill. App. 3d 926, 949, 552 N.E.2d 1112, 1128-29.

Defendant’s reliance on People v. Lockett (1990), 196 Ill. App. 3d 981, 554 N.E.2d 566, is misplaced. The Lockett court held that a defendant did not waive his objection to the trial court’s failure to dismiss for cause when the defendant did not strike the juror with a peremptory challenge. (Lockett, 196 Ill. App. 3d at 984, 554 N.E.2d at 568.) Here, regardless of waiver, defendant cannot demonstrate that he was unfairly prejudiced.

VII

Defendant asserts that he was denied a fair trial due to improper treatment of the juror cards. Defendant claims that the juror cards were not numbered and called in sequence from the jury assembly room, in violation of the rules of the circuit court of Cook County. Defendant, however, has failed to indicate that he objected to the procedure during jury selection or in his post-trial motion. Thus, the argument is waived. See People v. Harris (1986), 146 Ill. App. 3d 632, 636, 497 N.E.2d 177, 179.

Even if defendant had preserved the issue, it should be noted that the two cases cited by defendant, Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, and Duren v. Missouri (1979), 439 U.S. 357, 58 L. Ed. 2d 579, 99 S. Ct. 664, address the blanket exclusion of women from the jury selection process. Defendant has failed to identify any unfair exclusion of any group or individual in this case, let alone the sort of exclusions at issue in Taylor and Duren. Nor has plaintiff shown how the jury selection unfairly prejudiced his case.

VIII

Defendant contends that the police lacked probable cause to arrest him. In this case, while defendant has shown that he moved to suppress statements he made to the police, defendant has not shown that he moved to quash his arrest for lack of probable cause. Consequently, the argument is waived. See People v. Watkins (1981), 98 Ill. App. 3d 889, 897, 424 N.E.2d 701, 707.

Even if defendant had preserved the issue for appeal, his argument fails to persuade for two reasons. First, defendant may not have been “arrested” when he accompanied the police to the station and was questioned in the interview room. Resolving this question would require an analysis of the intent of the police and the understanding of defendant at the time. (See, e.g., People v. Johnson (1989), 187 Ill. App. 3d 756, 769, 544 N.E.2d 392, 400.) Second, assuming arguendo that the first question could be resolved in defendant’s favor, the question of whether the police had probable cause would remain. Whether probable cause exists in a given case depends on whether the totality of the circumstances would lead a reasonable person to believe that a crime was committed and defendant committed it. (See People v. Mackey (1990), 207 Ill. App. 3d 839, 857-58, 566 N.E.2d 449, 460.) Here, the police discovered a dead body with an address book and court records nearby. The record indicates that the book and records suggested that defendant may have been involved in the death. The investigation indicated that defendant was not the deceased. The police interviewed defendant’s upstairs neighbor, who indicated that she heard a fight in defendant’s apartment and later saw defendant and another man loading a seemingly unconscious third man into the rear of defendant’s car and drive away. The police are entitled to rely on the neighbor’s statement. (See Johnson, 187 Ill. App. 3d at 771, 544 N.E.2d at 401.) The case cited by defendant, People v. Holveck (1990), 141 Ill. 2d 84, 565 N.E.2d 919, involves a different set of circumstances altogether. Thus, defendant has failed to show that the police lacked.probable cause.

IX

Defendant contends that he was unable to comprehend the Miranda warnings the police read to him at the station because he is illiterate. In order for defendant to effectively waive his Miranda rights after being informed of them, the waiver must be knowing and voluntary. (People v. Bernasco (1990), 138 Ill. 2d 349, 357, 562 N.E.2d 958, 961.) The record shows that the trial court rejected defendant’s argument in the course of denying defendant’s motion to suppress statements. It is the function of this court to determine whether the trial court’s ruling was against the manifest weight of the evidence. People v. Redd (1990), 135 Ill. 2d 252, 293, 553 N.E.2d 316, 333.

In this case, the record indicates that defendant was 32 years old at the time of Ortuno’s death and had attended school through the second year of high school. Defendant contends that he is unable to read English or Spanish, but he admitted on the record that he can understand English. The record indicates that defendant was orally informed of his Miranda rights more than once and stated that he understood his rights. The record indicates that defendant’s written statements were read to him. The record indicates that defendant signed the written statements and initialled various corrections.

Defendant testified that he did not understand his rights, but it is the function of the trial court to evaluate the credibility of the witnesses. (See Redd, 135 Ill. 2d at 295-96, 553 N.E.2d at 334-35.) The cases cited by defendant are distinguishable. For example, Bernasco (138 Ill. 2d at 349, 562 N.E.2d at 958), People v. Redmon (1984), 127 Ill. App. 3d 342, 468 N.E.2d 1310, and People v. Devine (1974), 17 111. App. 3d 1053, 309 N.E.2d 76, all involved young defendants with mental deficiencies. People v. Turner (1973), 56 Ill. 2d 201, 206-07, 306 N.E.2d 27, 30, also involved a defendant with a mental deficiency. While the presence of a mental problem is not determinative (see People v. Hester (1968), 39 Ill. 2d 489, 500, 237 N.E.2d 466, 474), it is a factor which defendant has not shown in this case. The trial court in People v. Nau (1988), 167 Ill. App. 3d 338, 345, 521 N.E.2d 177, 182, found that defendant was delusional at the time he gave a statement to the police; defendant has not pointed to such evidence here. Finally, in People v. Araiza (1974), 19 Ill. App. 3d 52, 55, 311 N.E.2d 190, 193, the trial court considered evidence of defendant’s beer drinking and lack of sleep prior to giving the statement, along with defendant’s undisputed inability to speak English. Again, defendant has presented no such evidence in this case. Thus, defendant has failed to show from the record that the trial court’s ruling was against the manifest weight of the evidence.

X

Defendant argues that the trial court erred by giving Prim instructions to the jury. Named after the case of People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, their purpose is to assure that deadlocked jurors will examine their positions and attempt to reach a verdict. (See People v. Bibbs (1981), 101 Ill. App. 3d 892, 900, 428 N.E.2d 965, 971.) A reversal is warranted where the language of such an instruction unfairly interferes with or coerces the verdict. People v. Craddock (1987), 163 Ill. App. 3d 1039,1045, 516 N.E.2d 1357,1362.

Defendant has failed to show that he objected to the giving of the Prim instruction either at the time it was given or in his post-trial motion. Therefore, the argument is waived.

Even if defendant had preserved the argument, it would fail to persuade this court. Defendant relies on People v. Santiago (1982), 108 Ill. App. 3d 787, 439 N.E.2d 984, to argue that the trial court improperly inquired into the numerical division of the jury. In Santiago, however, the trial court inquired not only into the numerical division of the jury, but also into which verdict the majority favored. (See Santiago, 108 Ill. App. 3d at 806-07, 439 N.E.2d at 997.) In this case, the trial court expressly told the jury foreman not to reveal which verdicts the majority favored. Thus, the inquiry was harmless. Craddock, 163 Ill. App. 3d at 1045-46, 516 N.E.2d at 1362.

Defendant also contends that the trial court coerced the verdict, given the timing of the Prim instruction. In his brief, defendant asserts that the jury was so instructed at 4:30 p.m. on a Friday and the jury returned its verdicts 15 minutes later. Defendant asserts that the jury must have feared being sequestered over the weekend.

Defendant relies on People v. Ferro (1990), 195 Ill. App. 3d 282, 551 N.E.2d 1378, People v. Friedman (1986), 144 Ill. App. 3d 895, 494 N.E.2d 760, People v. Branch (1984), 123 Ill. App. 3d 245, 462 N.E.2d 868, and People v. Robertson (1981), 92 Ill. App. 3d 806, 416 N.E.2d 323, in support of this argument. These cases are distinguishable in two important respects. First, in each case the trial court made remarks regarding sequestration or the impossibility of deadlock. In this case, defendant has not identified any such remarks in the record. Second, in each case the jury returned verdicts shortly after hearing the trial court’s remarks. In this case, despite defendant’s assertions, the half-sheet included in the record indicates that the jury was given the Prim instruction at 11:45 a.m. on May 12, 1989, and returned its verdicts at 3:45 p.m. that day. Defendant has not shown, as was the case in Ferro and Santiago, repeated interference by the trial court.

XI

Defendant contends that he was denied a fair trial due to improper contact with the jury. Defendant points to a discussion during his sentencing hearing indicating that defense counsel and the trial judge were aware that the jury had reached a verdict on the concealment charge prior to the conclusion of jury deliberations. However, defendant has not shown from the record that he raised the issue during jury deliberations or in his post-trial motion. Nor has defendant pointed to anything in the record which would indicate that such contact, if it occurred, was of the sort requiring this court to address the issue as plain error. Thus, the issue is waived.

XII

Finally, defendant contends that the trial court erred by refusing to rule on objections at trial, making statements such as, “the appellate court will decide that.” Defendant, however, has failed to point to any such instance in the record and failed to raise the issue in his post-trial motion. Consequently, defendant has waived this issue.

For all of the aforementioned reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

O’CONNOR and MANNING, JJ., concur.


author: PRESIDING JUSTICE STEIGMANN

text:
    JAMES J. PERSON, Plaintiff-Appellant, v. GLENN R. BEHNKE, Defendant-Appellee.
    Fourth District
    No. 4 — 92—0331
    Opinion filed March 31, 1993.

      Auler Law Offices, P.C., of Urbana (Robert I. Auler, of counsel), for appellant.
    David E. Jones and Mark M. Flannery, both of Hinshaw & Culbertson, of Chicago (D. Kendall Griffith, of counsel), for appellee.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In April 1991, plaintiff, James Person, brought a legal malpractice action against defendant, Glenn Behnke, who had served as plaintiff’s attorney in a divorce proceeding. In March 1992, the trial court granted defendant’s motion to dismiss on the ground that plaintiff could not recover for the noneconomic damages arising from his loss of custody and visitation of his minor children because these damages actually constituted damages for emotional distress. Plaintiff appeals, arguing that the trial court erred in granting defendant’s motion to dismiss.

We agree and reverse.

I. Background

In plaintiff’s amended complaint filed in September 1991, he alleged that defendant committed legal malpractice by negligently representing plaintiff in his divorce proceedings in Indiana. In June 1986, plaintiff’s wife moved to Indiana, taking their two children with her, and immediately initiated divorce proceedings in Indiana. Plaintiff retained defendant as his attorney. In essence, plaintiff alleged that defendant failed to take any action on plaintiff’s behalf either in those proceedings or later, after an Indiana court entered a default judgment against plaintiff.

Plaintiff alleged that as a result of defendant’s negligence, plaintiff (1) lost custody of his children and effective visitation with them, (2) lost all his interest in marital property that his wife had removed to Indiana, (3) was ordered to pay child support beyond his means, (4) was adjudged in arrears on child support, (5) was ordered to pay his wife’s attorney fees, (6) had his wages garnished for the child support arrearages, and (7) incurred additional legal fees in seeking (and obtaining) reversal of the default judgment entered against him in Indiana.

In December 1991, the trial court granted defendant’s motion to dismiss plaintiff’s complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Code) (111. Rev. Stat. 1991, ch. 110, par. 2 — 615). The court held that the supreme court’s decision in Collins v. Reynard (Oct. 31, 1991), No. 70325, reh’g granted (Feb. 3, 1992), required dismissal of plaintiff’s action because “it sounds in tort and is an action for attorney malpractice.” In February 1992, the trial court, upon plaintiff’s motion to reconsider, vacated its order granting defendant’s motion to dismiss and reinstated plaintiff’s action because it found that plaintiff was claiming noneconomic damages not addressed in Collins.

In March 1992, the trial court, upon defendant’s motion to reconsider its decision to vacate its order of dismissal, concluded that plaintiff’s claimed noneconomic damages essentially constituted a claim for “suffering and emotional distress or mental anguish.” Citing this court’s decision in Segall v. Berkson (1985), 139 Ill. App. 3d 325, 487 N.E.2d 752, the court thus held that such damages “are disallowed in a suit for attorney malpractice.” The court again granted defendant’s motion to dismiss.

II. Analysis

A. Standard of Review

When reviewing a trial court’s decision to dismiss a complaint under section 2 — 615 of the Code, a reviewing court must determine whether the complaint’s well-pleaded allegations, when viewed in the light most favorable to the plaintiff, sufficiently establish a cause of action for which relief may be granted. (Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 46-47, 566 N.E.2d 1365, 1366; Dix Mutual Insurance Co. v. LaFramboise (1992), 149 Ill. 2d 314, 318-19, 597 N.E.2d 622, 624.) In doing so, a reviewing court must take all well-pleaded facts in the challenged complaint as true. Ziemba, 142 Ill. 2d at 47, 566 N.E.2d at 1366; LaFramboise, 149 Ill. 2d at 318, 597 N.E.2d at 624.

B. Application of Collins

Initially, we note that upon granting rehearing, the supreme court recently reconsidered its initial decision in Collins and held that “a complaint against a lawyer for professional malpractice may be couched in either contract or tort and that recovery may be sought in the alternative.” (Collins v. Reynard (1992), 154 Ill. 2d 48, 50.) The court went on to limit this holding to the specific field of lawyer malpractice. (Collins, 154 Ill. 2d at 52.) Thus, Collins supports plaintiff’s claims that he can maintain a cause of action and seek damages based on the alleged malpractice of defendant, and the defendant has conceded as much. Accordingly, we reverse the trial court’s dismissal of plaintiff’s complaint and remand for further proceedings consistent with the supreme court’s decision in Collins.

C. Plaintiffs Claim for Noneconomic Damages Resulting from His Loss of Custody and Visitation with his Children

Even though we have determined that the supreme court’s decision in Collins requires reversal regarding plaintiff’s claims for economic damages due to defendant’s alleged legal malpractice, we must still address plaintiff’s claim for noneconomic damages caused by his loss of custody and visitation with his children. The trial court rejected this aspect of defendant’s claim, explaining as follows:

“Plaintiff argues that the court — and not he — characterized his damages as suffering and emotional distress, which of course are non-economic. It is impossible, however, for the court to categorize compensable damages from a loss of custody and visitation of plaintiff’s minor children other than as suffering and emotional distress or mental anguish. Defendant correctly points out that Segall v. Berkson (1985), 139 111. App. 3d 325[, 487 N.E.2d 752], precludes such damages in this action.”

Defendant cites Segall and Maere v. Churchill (1983), 116 Ill. App. 3d 939, 452 N.E.2d 694, as support for the trial court’s ruling that emotional distress is not recoverable in a legal malpractice action sounding in negligence. Plaintiff argues that the damages he alleged for lost custody of, and visitation with, his children constitute noneconomic damages that differ from damages for emotional distress. Defendant responds that plaintiff’s losses do not reflect “direct physical or monetary lossfes].” Instead, defendant argues that they only “affect[ ] one psychologically through one’s emotions,” and thus actually constitute emotional distress damages. Defendant further asserts that plaintiff “has suggested no alternative means of describing or measuring the damage flowing from loss of custody. It can only be measured in terms of emotional distress or mental anguish.”

In Maere, the court held that plaintiffs could not recover for their “ ‘great mental anguish, emotional distress, disappointment and inconvenience’ ” caused by their attorneys’ alleged negligence in performing legal work for them. (Maere, 116 Ill. App. 3d at 943, 452 N.E.2d at 697.) In Segall, the plaintiff claimed that he suffered emotional distress because he did not obtain permanent custody of his son and had difficulty in obtaining visitation with his son due to his attorney’s alleged legal malpractice. This court, citing Maere, held plaintiff’s complaint insufficient to provide a basis for recovering damages based on an attorney’s negligence. Segall, 139 Ill. App. 3d at 330-31, 487 N.E.2d at 756.

We disagree with defendant’s assertion that plaintiff’s claim for loss of custody and visitation constitutes a claim for mental distress. Although Segall and Maere retain their validity, they do not apply to this case. We hold that a valid claim exists for noneconomic damages resulting from a plaintiff’s loss of custody and visitation of his children which allegedly resulted from an attorney’s negligence.

In reaching this holding, we take particular note of a parent’s ability to recover for the loss of society of the parent’s child upon the wrongful death of the child. (See Bullard v. Barnes (1984), 102 Ill. 2d 505, 515-17, 468 N.E.2d 1228, 1233-34 (under the Wrongful Death Act (111. Rev. Stat. 1991, ch. 70, pars. 1 through 2.2), parents can recover for nonmonetary damages stemming from the loss of their child’s society; indeed, parents are entitled to a presumption of a pecuniary injury in loss of a child’s society); Seefv. SutJcus (1991), 145 Ill. 2d 336, 337, 583 N.E.2d 510, 511 (parents can maintain a cause of action to recover damages for loss of their stillborn child’s society).) This recovery by a parent for the parent’s loss of a child’s society is separate from and exclusive of any mental suffering and anguish the parent underwent as a result of the child’s death. (Bullard, 102 Ill. 2d at 514-15, 468 N.E.2d at 1233 (damages for mental anguish are not recoverable in a wrongful death action and are distinct from damages for loss of society); Uhr v. Lutheran General Hospital (1992), 226 Ill. App. 3d 236, 267, 589 N.E.2d 723, 744, vacated (March 9, 1993), No. 73410 (supervisory order); see also Illinois Pattern Jury Instructions, Civil, No. 31.07 (3d ed. 1992) (hereafter IPI Civil 3d) (“Measure of Damages — Wrongful Death — Factors Excluded” (grief and sorrow of the next of kin cannot be used in determining “pecuniary loss”)).) “[Pjecuniary losses encompass loss of society damages for many facets of family relationships” (Seef, 145 Ill. 2d at 338, 583 N.E.2d at 511), and also include deprivation of the deceased’s companionship, guidance, advice, love, and affection. Bullard, 102 Ill. 2d at 514, 468 N.E.2d at 1232; see also IPI Civil 3d No. 31.11 (“Damages — Loss of Society — Definition” (“society” means the mutual benefits received from a family member’s continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection)).

Nonetheless, defendant argues that after the supreme court’s decision in Dralle v. Ruder (1988), 124 Ill. 2d 61, 529 N.E.2d 209, a parent cannot recover damages for the loss of society of a nonfatally injured child. Defendant points out that the Dralle court noted that allowing loss-of-society damages for nonfatally injured children would unduly enlarge tort liability, invite duplicative recoveries, and present difficulty in determining damages. (Dralle, 124 Ill. 2d at 69-70, 529 N.E.2d at 213.) Defendant contends that these same policy considerations should dictate our decision in this case.

In Dralle, the plaintiffs sued a pharmaceutical manufacturing company (and others) for damages arising from their son’s birth defects and injuries received at birth. They based their claim for recovery on the loss of their son’s companionship and society that resulted from these birth defects and injuries. The supreme court held that the plaintiffs could not recover under a theory of loss of society of their injured child because (1) their claim arose as the derivative consequence of an injury to their child (Dralle, 124 Ill. 2d at 73-74, 529 N.E.2d at 214-15), and (2) their son could maintain his own cause of action against the alleged tortfeasor (Dralle, 124 Ill. 2d at 68-69, 529 N,E.2d at 212). Further, the court in Dralle noted that the plaintiffs were not completely deprived of their child’s companionship and society and commented on the difficult, “and perhaps impossible, task of evaluating — and assigning a monetary figure to — the reduced value of the parents’ relationship with the affected child.” Dralle, 124 Ill. 2d at 70-71, 529 N.E.2d at 213.

The Dralle court distinguished its holding from the holding in Dymek v. Nyquist (1984), 128 Ill. App. 3d 859, 469 N.E.2d 659. In Dymek, the court reviewed the plaintiff’s claim for the loss of his son’s society against his former wife and a psychiatrist based on their alleged conspiracy to separate plaintiff from his son by brainwashing his son against him. (Dymek, 128 Ill. App. 3d at 867-68, 469 N.E.2d at 665-66.) The court found that under those circumstances, it “should now recognize a cause of action for parental loss of a minor child’s society and companionship.” (Dymek, 128 Ill. App. 3d at 868, 469 N.E.2d at 666.) The Dralle court distinguished its holding from Dymek and Kunz v. Deiteh (N.D. 111. 1987), 660 F. Supp. 679 (divorced father had cause of action for loss of his son’s society against his deceased wife’s parents for their alleged attempts to put his son up for adoption), because they were “direct interference” cases — claims based on the direct interference with the child-parent relationship. (Dralle, 124 Ill. 2d at 73, 529 N.E.2d at 214.) The Dralle court found that because the plaintiffs in Dralle based their claims on the derivative consequence of injuries to their child, those claims did not involve “direct interference” and thus differed from the claims in Dymek and Kunz. Dralle, 124 Ill. 2d at 73, 529 N.E.2d at 214.

Consistent with the supreme court’s decision in Dralle, we find that here plaintiff’s claim for loss of his children’s society results from the “direct interference” by defendant with plaintiff’s child-parent relationship. Plaintiff completely lost contact with his children for an extended period of time (approximately five years) because of defendant’s conduct. This complete lack of contact with his children directly resulted from defendant’s alleged inaction in plaintiff’s divorce proceedings. Further, plaintiff’s complaint alleges that defendant’s negligence directly affected the parent-child relationship, which defendant owed a duty as plaintiff’s lawyer to try to protect and nurture through plaintiff’s divorce proceedings.

Last, regarding the supreme court’s concerns about “permitting both the injured victim and his family members to pursue their own actions” (Dralle, 124 Ill. 2d at 70, 529 N.E.2d at 213), we do not know of any such action brought by a child of a parent in a divorce proceeding alleging legal malpractice by that parent’s counsel, resulting in an adverse ruling to the child regarding that parent’s custody or visitation of the child. We frankly do not see how such a lawsuit could have any merit because lawyers in a divorce proceeding owe a duty to their clients — the parents — not to the children of their clients. Accordingly, we find that Dralle does not require us to dismiss plaintiff’s claims for damages resulting from his loss of custody and visitation with his children.

However, we are mindful of the concerns expressed by the court in Dralle about broadening the scope of tort liability, and we will address those concerns. First, regarding the determination of damages from loss of society, we note that while this may prove difficult, juries have been making this determination for quite some time. (See IPI Civil 3d Nos. 31.01 (“Measure of Damages — Wrongful Death — Minor Child Decedent — Lineal Next of Kin Surviving”), 31.11 (“Damages— Loss of Society — Definition”).) Second, we have already discussed the court’s concerns regarding duplicative recovery, and we emphasize that we limit our holding here to a parent involved in a divorce proceeding. We specifically decline to extend our holding to “[grandparents, siblings, and friends suffering similar losses of society.” Dralle, 124 Ill. 2d at 70, 529 N.E.2d at 213.

Last, and most important, we recognize that this cause of action has the potential to explode into a plethora of meritless suits brought by disgruntled parents who simply do not like the result their lawyers obtained for them in divorce proceedings and — in hindsight-think that their lawyers (or some other lawyer) could (and should) have done a better job. Accordingly, we limit the scope of our holding to only those most egregious cases of legal malpractice by focusing on the conduct of the defendant-attorney. In Cogam, v. KAL Leasing, Inc. (1989), 190 Ill. App. 3d 145, 153, 546 N.E.2d 20, 25, this court found that the standards set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, for evaluating claims of ineffective assistance of counsel in criminal cases provided an appropriate gauge for a claim of ineffective assistance of counsel in a civil law context. We now adopt the Strickland standards as the criteria for judging whether an attorney’s alleged malpractice in representation of that attorney’s client in a divorce proceeding can serve as the basis for the client’s subsequent claim that he lost custody or visitation of his child as a direct result of the attorney’s alleged malpractice.

To prove ineffective assistance of counsel under Strickland, a criminal defendant must prove that (1) his counsel’s performance was seriously deficient in that it fell below an objective standard of reasonableness, and (2) this deficient performance prejudiced his case. (People v. Odie (1992), 151 Ill. 2d 168, 172, 601 N.E.2d 732, 734.) Also, this standard requires “ ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (Cogan, 190 Ill. App. 3d at 153, 546 N.E.2d at 25, quoting People v. Barnard (1984), 104 Ill. 2d 218, 237-38, 470 N.E.2d 1005, 1012.) Furthermore, under this standard, a reviewing court will not review counsel’s conduct which involves an exercise of judgment, discretion, strategy, or trial tactics. People v. Jones (1992), 234 Ill. App. 3d 1082,1098, 601 N.E.2d 1080,1090.

To prove that an attorney negligently represented a client in a divorce case resulting in a claim for loss of custody and visitation, the plaintiff must prove (1) that his counsel’s performance fell below an objective standard of reasonableness, (2) that this deficient performance did not involve an exercise of judgment, discretion, strategy, or trial tactics, and (3) that this deficient performance seriously prejudiced his case such that a reasonable probability exists that without the unprofessional errors, the plaintiff would have received custody or visitation.

Therefore, under this standard, a plaintiff cannot recover under a loss-of-society theory merely because his attorney could have handled his divorce case differently or was unable to obtain more or better visitation rights. In the present case, plaintiff alleged that defendant did almost nothing on his behalf. Thus, this claim does not challenge defendant’s judgment, strategy, or trial tactics.

We emphasize also that a plaintiff must allege that he lost custody or visitation, not just that he was disappointed in the amount of visitation granted. Here, plaintiff alleged that he lost “effective visitation” with his children, as well as losing custody. We are not sure what that means, but because the trial court dismissed the complaint under section 2 — 615 of the Code, we have no facts before us to explain that allegation further. The parties can pursue that matter on remand, and we withhold further comment.

III. Conclusion

For the reasons stated, we reverse the judgment of the circuit court and remand for further proceedings in accordance with the views expressed herein.

Reversed.

KNECHT and GREEN, JJ., concur.


author: PRESIDING JUSTICE STEIGMANN court: JUSTICE COOK,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EARNESTINE LEMONS, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0346
    Opinion filed March 25, 1993.

      COOK, J., dissenting.
    Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goet-ten, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the

court:

On March 17, 1992, defendant filed a pro se petition for post-conviction relief, alleging that she was denied effective assistance of counsel at trial. On March 30, 1992, the trial court dismissed defendant’s petition as “frivolous and patently without merit,” pursuant to section 122 — 2.1(aX2) of the Post-Conviction Hearing Act (Act) (111. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(aX2)). Defendant appeals, arguing that the court erred by dismissing her petition.

We affirm.

I. Background

In June 1989, the State charged defendant with four counts of first degree murder (111. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(1)). In January 1990, defendant entered a negotiated guilty plea to second degree murder (111. Rev. Stat. 1989, ch. 38, par. 9 — 2(a)(2)). In March 1990, the trial court sentenced her to 15 years in prison. No direct appeal was taken.

On March 17, 1992, defendant filed a pro se petition for post-conviction relief, which alleged that she was denied effective assistance of counsel for the following reasons: (1) defense counsel “coerced defendant into accepting a fifteen year sentence where the possibility existed that she could of [sic] received a lesser sentence if taken to trial”; and (2) defense counsel “acknowledged the fact that defendant was indigent, but failed to give the defendant-petitioner any copies of the ‘report of proceeding or common law records[’] to perfect an appeal to the Illinois Appellate Court or Supreme Court.”

In its March 30, 1992, order of dismissal, the trial court wrote that defendant’s petition “sets out no facts supporting a claim of coercion.” The court also noted that it had fully admonished defendant under Supreme Court Rule 402 (134 111. 2d R. 402) when she pleaded guilty, and that defendant’s “guilty plea was found to be entirely voluntary.” Regarding defendant’s second claim, the court noted that defendant “was fully advised following her sentencing hearing *** about how to perfect her appeal rights and nothing is shown that she ever requested any assistance of her trial counsel regarding any appeal.”

II. Analysis

A. Proceedings Under the Post-Conviction Hearing Act In People v. Eddmonds (1991), 143 111. 2d 501, 510, 578 N.E.2d 952, 955-56, the Illinois Supreme Court discussed the Act as follows:

“The *** Act provides a remedy to criminal defendants who claim that substantial violations of their constitutional rights occurred in their trial. [Citation.] A post-conviction proceeding is not an appeal per se, but a collateral attack upon a final judgment. [Citation.] The purpose of a post-conviction proceeding is not to determine guilt or innocence, but to inquire into constitutional issues which have not been, and could not have been, previously adjudicated. [Citation.] In a post-conviction proceeding, the petitioner bears the burden of proving that a substantial constitutional violation occurred at trial.”

In 1983, the General Assembly enacted Public Act 83 — 942 (Pub. Act 83 — 942, eff. November 23, 1983 (1983 111. Laws 6200, 6201)), which amended the Act by adding section 122 — 2.1 (111. Rev. Stat. 1989, ch. 38, par. 122 — 2.1). That new section authorized a trial court to dismiss a post-conviction petition that the court determined was frivolous or patently without merit, thereby avoiding the expense, bother, and delay that the processing of deficient petitions had caused the courts before the enactment of Public Act 83 — 942. By enacting section 122 — 2.1, the legislature clearly intended to expedite trial court handling of deficient post-conviction petitions.

In People v. Dredge (1986), 148 Ill. App. 3d 911, 912-13, 500 N.E.2d 445, 446, this court considered the 1983 amendment to the Act and determined that the Act now provided a three-stage process for adjudication of petitions for post-conviction relief. At the first stage, the trial court should not decide the petition on the merits; instead, without input from the State or further pleadings from the defendant, the court should simply determine if the petition is frivolous or patently without merit. (Dredge, 148 Ill. App. 3d at 912, 500 N.E.2d at 446.) “[I]n order to withstand dismissal at the first stage of post-conviction proceedings, a petition for post-conviction relief need only contain a simple statement which presents the gist of a claim for relief which is meritorious when considered in view of the record of the trial court proceedings.” Dredge, 148 Ill. App. 3d at 913, 500 N.E.2d at 446.

If the court determines at this first stage that the petition is not frivolous or patently without merit, then at the second stage the court may appoint counsel to represent an indigent defendant, and counsel will have the opportunity to amend the post-conviction petition. The State may then move to dismiss the petition. The third and final stage is an evidentiary hearing if the court has not dismissed the petition on the State’s motion. Dredge, 148 111. App. 3d at 913, 500 N.E.2d at 446.

In People v. Porter (1988), 122 111. 2d 64, 74, 521 N.E.2d 1158, 1161, the supreme court discussed section 122 — 2.1 of the Act and added the following regarding the petitioner’s burden:

“[T]he [post-conviction] petitioner must set forth the specific manner in which his rights were violated. (111. Rev. Stat. 1983, ch. 38, par. 122 — 2.1.) The petitioner does not have to construct legal arguments or cite to legal authority. Once the petitioner sets out allegations demonstrating a meritorious constitutional claim, he is entitled to have counsel represent him on the petition. ‘While it is obvious that counsel should be better able to more artfully draft a petition than an indigent petitioner unschooled in legal drafting, it is certainly not clear that an indigent petitioner could not present the gist of his claim so that the trial court could make an initial determination as to whether * * * the claim is frivolous.’ People v. Baugh (1985), 132 HI. App. 3d 713, 717[, 477 N.E.2d 724, 726].”

B. Defendant’s Claim, That Her Counsel Coerced Her Guilty Plea

Citing Dredge, defendant argues that her pro se petition contained the gist of a meritorious claim and that “evidence of coercion could only be properly considered with the appointment of counsel and investigation of the nature of the advice and tactics employed by trial counsel when advising the defendant to plead guilty.” Defendant also cites People v. Von Perbandt (1991), 221 Ill. App. 3d 951, 956, 583 N.E.2d 90, 93, for the proposition that only a “minimal amount of specificity is required” for pro se petitions. Defendant claims that her petition complied with the standards of Dredge and Von Perbandt. We disagree.

The Act requires that the allegations in the petition for post-conviction relief be supported by affidavit, the record, or other evidence. (111. Rev. Stat. 1991, ch. 38, pars. 122 — 1, 122 — 2.) However, the sole extent of defendant’s allegations regarding her coercion claim is that her trial counsel “coerced defendant into accepting a fifteen year sentence where the possibility existed that she could of [sic] received a lesser sentence if taken to trial.” In People v. Williams (1972), 52 Ill. 2d 466, 468, 288 N.E.2d 353, 354, the supreme court rejected a similar argument by a pro se petitioner and noted that the Act requires that a petition be supported by affidavits, records, or other evidence supporting its allegations. Significantly, the Williams court -wrote that “[n]o allegation as to the time, place, what was said or other circumstances of the claimed coercion was made by affidavit or otherwise.” Williams, 52 Ill. 2d at 469, 288 N.E.2d at 354-55.

The present case is no different than Williams. This record does not contain any statement by defendant of how, when, or where her trial counsel coerced her into pleading guilty. If she was truly coerced, we fail to understand why she cannot supply this information. It is just not that tricky or difficult for her to provide the particulars underlying the allegation of coercion in her petition. We will not permit defendant to keep that information secret, only to reveal it (assuming it exists) in later, amended petitions or at the hearings thereon.

The supreme court’s discussion in Porter that we earlier quoted regarding the petitioner’s burden makes clear that the supreme court’s requirements for what a valid post-conviction petition must contain, as stated in Williams, remain valid even after Dredge. Similarly, in People v. Lawrence (1991), 211 Ill. App. 3d 135, 138, 569 N.E.2d 1175, 1177, this court acknowledged as much when it affirmed a trial court’s dismissal of a post-conviction petition as frivolous and patently without merit and wrote the following:

“[T]he allegations of a post-conviction petition must be supported by the record in the case or by accompanying affidavits. [Citations.] The defendant’s petition was not supported by the record in the case or by an accompanying affidavit. For this reason alone, the trial court properly dismissed the defendant’s post-conviction petition.”

We note that the supreme court in People v. Johnson (1993), 154 Ill. 2d 227, 240, recently cited Lawrence approvingly for the proposition that the trial court properly dismissed the defendant’s post-conviction petition due to defendant’s failure to support his claims with affidavits.

Based on this appeal and several others which have come before us, it is evident that we must further explain the term “gist of a claim for relief which is meritorious,” as used in Dredge (148 Ill. App. 3d at 913, 500 N.E.2d at 446). A “gist of a meritorious claim” is not a bare allegation of a deprivation of a constitutional right. Although a pro se defendant seeking post-conviction relief would not be expected to construct legal arguments, cite legal authority, or draft her petition as artfully as would counsel, the pro se defendant must still plead sufficient facts from which the trial court could find a valid claim of deprivation of a constitutional right. (Porter, 122 Ill. 2d at 74, 521 N.E.2d at 1161.) To hold otherwise would create a disincentive to specificity, benefiting those who set forth their allegations solely in the broadest, most conclusionary terms with greater process — in the sense of keeping them “in the game” — over those who state all the facts and simply have an insufficient case, namely, they raise no issues of constitutional proportion.

The trial court is not prevented from closely scrutinizing the supporting documents at the first stage in the process to determine whether the allegations are frivolous or patently without merit. Indeed, we believe the enactment of section 122 — 2.1 of the Act encourages such an analysis. (111. Rev. Stat. 1991, ch. 38, par. 122 — 2.1.) Also, section 122 — 2 of the Act — which sets forth the requirements of what a post-conviction petition must contain — has been part of the Act in substantially the same language for decades. We fail to find any legislative intent to reduce the preexisting statutory requirements of section 122 — 2 of the Act when the legislature enacted Public Act 83 — 942, which added section 122 — 2.1 to the Act. In other words, by adding section 122 — 2.1 to the Act in 1983, the last thing the legislature intended was to increase the threshold at which the trial court could dismiss bogus post-conviction petitions.

Therefore, the language from Dredge — a post-conviction petition suffices if it sets forth the gist of a meritorious constitutional claim-means that the pro se petitioner need not construct legal arguments in her petition nor even understand what legal arguments the facts she presents therein might support. Instead, the trial court should consider the petition at the first stage to determine whether it contains sufficient facts upon which a meritorious constitutional claim could be based. In the present case, for instance, if defendant’s claims had any merit, she could have set forth in her verified petition just what bad things she claims her trial counsel did that now lead her to claim she was coerced into pleading guilty. After all, at some point she will have to provide these particulars because she has the burden of proof to demonstrate she suffered a deprivation of her constitutional rights.

Additionally, we find that the statement from Von Perbandt that “a minimal amount of specificity(.is required of a petitioner” at the first stage (Von Perbandt, 221 Ill. App. 3d at 956, 583 N.E.2d at 93) lends no support to defendant’s arguments because here we confront zero specificity. Defendant’s claim that her trial counsel coerced her into pleading guilty is entirely conclusory and utterly devoid of even a hint of what facts might underlie that claim. If we were to accept defendant’s claim that her petition is sufficient, then in effect we would be holding that any allegation of attorney misconduct in a post-conviction petition suffices at the first stage of the trial court’s scrutiny despite the petition’s total absence of factual allegations.

Essentially, the question before us is whether we should impose upon a trial court the expense, bother, and delay of proceeding beyond the first stage of post-conviction petition scrutiny when the particular petition before the court fails to contain factual averments. We hold that we will not impose any such requirement, and that to do so would be to squander our scarce judicial resources and the tax dollars which support our system of justice.

The trial court’s written order dismissing defendant’s post-conviction petition as frivolous and patently without merit found that defendant failed to set forth facts in that petition to support a claim of coercion. The trial court’s determination is correct, and to hold otherwise by finding the petition before us sufficient would unleash a cascade of frivolous petitions upon the trial courts, precisely what the General Assembly hoped to stem when it added section 122 — 2.1 to the Act in 1983.

C. Defendant’s Claim That Counsel Failed To Give Her a Copy of the Common Law Record

Defendant’s second allegation in her post-conviction petition — that her trial counsel failed to give her copies of the report of proceedings or common law record to perfect an appeal — has even less merit than her claim that her lawyer coerced her into pleading guilty. This is so because her first claim would suffice (if properly supported) to at least afford a basis for relief under the Act. Defendant’s second allegation fails to do even that.

First, no reason exists why any defendant should be provided with copies of transcripts before filing an appeal. Supreme Court Rule 323 (134 111. 2d R. 323) clearly contemplates that transcripts will normally be prepared only after a defendant files a notice of appeal.

Second, defense counsel’s “failure” to provide his client with copies of the common law record cannot have meaningfully — much less constitutionally — impeded defendant’s ability to file a notice of appeal or to make known her interest in having a notice of appeal filed on her behalf. Defendant’s claim that without the common law record and transcripts she cannot meaningfully determine whether meritorious issues for appeal exist is ridiculous. As the trial court correctly noted in its order dismissing the post-conviction petition as frivolous and patently without merit, “[defendant] was fully advised following her sentencing hearing *** about how to perfect her appeal rights and nothing is shown that she ever requested any assistance of her trial counsel regarding any appeal.”

If defendant wanted to pursue an appeal, all she had to do was communicate that desire to her counsel or the court. However, she failed to do so, and now attempts to blame her inaction on her trial counsel’s “failure” to provide her with copies of transcripts and the common law record. Her claims are groundless.

Finally, we emphasize that Hlinois law does not require defense counsel to furnish copies of any of the documents that defendant claims her attorney failed to furnish her. Supreme Court Rule 607(b) (134 Ill. 2d R. 607(b)) provides that a convicted defendant may petition the court for a report of the proceedings at her trial or hearing. That rule further requires the petition to be verified and to state facts showing that the petitioner was without financial means with which to obtain the report of proceedings. The record before us here shows no compliance whatsoever with Rule 607(b). To accept defendant’s argument would simply read that rule out of existence by finding that somehow defense counsel at trial, not the trial court, has the obligation to furnish the documents in question. Counsel’s “failure” to give copies of the record to defendant so that she could perfect her appeal cannot possibly constitute a constitutional violation cognizable in a post-conviction petition.

III. Conclusion

For the reasons stated, we affirm the trial court’s order dismissing defendant’s post-conviction petition as frivolous and patently without merit.

Affirmed.

KNECHT, J., concurs.

JUSTICE COOK,

dissenting:

I respectfully dissent. Previous decisions have required pro se petitioners to state only “the gist of a claim” in order to survive dismissal at the first stage of a post-conviction proceeding. The majority concedes petitioner states the gist of a claim here: “her first claim would suffice (if properly supported) to at least afford a basis for relief under the Act.” 242 Ill. App. 3d at 948.

Even before the 1983 amendments, which added section 122 — 2.1 to the Act, post-conviction petitioners were not automatically entitled to an evidentiary hearing. There were obstacles, strict pleading requirements which were difficult to overcome. Before an evidentiary hearing was required petitioner had to make a substantial showing of a violation of constitutional rights, and to do that the allegations in the petition had to be supported by the record or by accompanying affidavits, unless their absence was sufficiently explained. The petition or the affidavits had to identify with reasonable certainty the source, character, and availability of the alleged evidence supporting the petition’s allegations. (People v. Curtis (1971), 48 Ill. 2d 25, 28, 268 N.E.2d 29, 30.) Section 122 — 5 of the Act still allows a trial court to dismiss a petition as the court did in Curtis, following motion and argument by the State. (111. Rev. Stat. 1991, ch. 38, par. 122 — 5.) In Curtis, however, and in every case decided under section 122 — 5, defendant was represented by counsel at the time the petition was dismissed. It is one thing to dismiss a post-conviction petition for failure to comply with technical pleading requirements when petitioner is represented by counsel, but it is quite another when petitioner is pro se. The cases which the majority opinion cites to support imposition of strict pleading requirements, Eddmonds, and even Williams, are cases where defendant was in fact represented by counsel. Defendant was not represented by counsel in Lawrence, but the cases upon which Lawrence relies also involved defendants represented by counsel. Defendant was not represented by counsel in Porter, but Porter does not take a hard line on pleadings, accepting the gist of a claim as sufficient.

This court resolved what was necessary for a pro se petition in its 1986 decision in Dredge. In Dredge, petitioner alleged in her post-conviction petition that her trial counsel “did not allow her to testify on her own behalf.” (Dredge, 148 Ill. App. 3d at 912, 500 N.E.2d at 446.) The petition was verified, but unsupported by affidavit, the record, or other evidence; Despite the State’s argument that the allegation was conclusory, this court found the petition adequately stated a claim of deprivation of defendant’s constitutional right to testify. The trial court was accordingly required to appoint counsel and docket the cause for further, second stage, consideration.

“In determining the particularity with which a pro se petitioner for post-conviction relief must state alleged deprivations of constitutional rights in her petition, we note that such petitioners are often persons of limited education. (See Rodriquez v. United States (1969), 395 U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715; People v. Wilson (1986), 146 Ill. App. 3d 567[, 499 N.E.2d 972].) Therefore, we conclude that in order to withstand dismissal at the first stage of post-conviction proceedings, a petition for post-conviction relief need only contain a simple statement which presents the gist of a claim for relief which is meritorious when considered in view of the record of the trial court proceedings. (See People v. Baugh (1985), 132 Ill. App. 3d 713, 477 N.E.2d 724.) Requiring pro se petitioners to state their claims in greater detail than this would have the practical effect of depriving many such persons of their right of meaning- j ful access to the courts. (Cf. People v. Wilson (1986), 146 Ill. App. 3d 567[, 499 N.E.2d 972].) Judged by this standard, defendant’s petition adequately states a claim of deprivation of her constitutional right to testify at trial.” (Dredge, 148 Ill. App. 3d at 913, 500 N.E.2d at 446-47.)

If we are now abandoning Dredge we should say so.

A number of cases have followed Dredge. In People v. White (1987), 152 Ill. App. 3d 404, 408-09, 504 N.E.2d 520, 523-24, this court reversed the summary dismissal of a petition which alleged petitioner was denied due process because his indictment was based on perjured testimony. There we stressed the difference between first- and second-stage dismissal. (See also People v. Jones (1988), 168 Ill. App. 3d 925, 937, 522 N.E.2d 1325, 1333 (“Given the low standard which a petitioner must meet in order to proceed beyond the threshold evaluation of his petition, we hold that Jones sufficiently alleged meritorious constitutional claims”).) In Von Perbandt (221 Ill. App. 3d at 956, 583 N.E.2d at 92), the State argued the petition for post-conviction relief did not allege that defendant actually asked his trial counsel to testify and that trial counsel refused. The appellate court, reversing, rejected that argument at “the first stage of the post-conviction proceeding, where very little detail appears to be required of the petitioner.” Von Perbandt, 221 Ill. App. 3d at 956, 583 N.E.2d at 93.

There are at least three levels of pleading: (1) the lowest level is mere notice pleading; (2) at a higher level, the pleader may not just give notice, but must set out the facts which support his cause of action; (3) at an even higher level the pleader is required, not just to state facts, but to support them with affidavits, or by references to the record. It is not clear whether the majority requires level (2) or level (3) compliance here. The majority says that it is just not that tricky for defendant to provide the particulars underlying her allegation of coercion (Dredge disagrees), but goes on to note the Act requires that a petition be supported by affidavits, records, or other evidence, and the legislature did not intend to reduce those requirements when it added section 122 — 2.1 to the Act. Dredge requires something close to level (1), the lowest pleading level. Dredge certainly did not require a pro se petitioner to attach affidavits or point to evidence in the record, both of which usually require some legal ability. Nor did Dredge impose much of a burden of stating facts: only a simple statement which presented the gist of a claim was necessary. The one requirement Dredge imposed beyond notice pleading was that an allegation contradicted by something appearing in the trial record would not be sufficient. While previously a petition was not sufficient unless it was supported by the record or by accompanying affidavits, a pro se petition was sufficient under Dredge unless contradicted by the record.

A petition which does not “have attached thereto affidavits, records, or other evidence supporting its allegations” (Ill. Rev. Stat. 1991, ch. 38, par. 122 — 2) is not necessarily “frivolous or *** patently without merit” (Ill. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(a)(2)). Both the terms “frivolous” and “patently without merit” seem to address the merits of the petition, not technicalities of pleading. We should not expand section 122 — 2.1 of the Act to cover every deficiency which could be addressed under section 122 — 5 of the Act. (White, 152 Ill. App. 3d at 407, 504 N.E.2d at 523 (section 122 — 2.1 should not be given an expanded interpretation).) Section 122 — 2.1 of the Act would appear to be concerned with unusually bad petitions. Not every unsuccessful petition is frivolous. In White, this court held that an issue, probably without merit, was too complicated to be found to be “frivolous” or “patently without merit” (emphasis in original). White, 152 Ill. App. 3d at 408, 504 N.E.2d at 523.

Courts are traditionally reluctant to attempt any kind of summary resolution of a case on its merits, and the majority disclaims any intention to do so here. Once a court gets into the merits it is difficult to find a stopping point short of a full evidentiary hearing. Still, before the 1983 amendments it would appear some consideration was given to the merits on a motion to dismiss a post-conviction petition. A court which requires “a substantial showing” of a constitutional violation before setting a case for evidentiary hearing probably gives some consideration to the weight of the evidence.

Since the 1983 amendments, section 122 — 2.1 of the Act allows summary dismissal of a petition which is “patently without merit” (emphasis added) (111. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(a)(2)), and allows the court to examine the court file and any transcripts. (111. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(c); see also People v. Baugh (1985), 132 Ill. App. 3d 713, 717, 477 N.E.2d 724, 726 (section 122 — 2.1 requires that post-conviction petitions be reviewed for “merit” before proceeding to the stage requiring proof).) It is difficult to believe that some appellate decisions upholding the dismissal of post-conviction petitions as frivolous or patently without merit were limited to the sufficiency of the pleadings. In other cases filed this day this court affirms the summary dismissal of articulate petitions, stating constitutional claims, with affidavits attached. People v. Prier (1993), 245 111. App. 3d 1037, 1041-42 (defendant failed to allege facts demonstrating compliance with the prejudice prong of Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052); People v. Ramirez (1993), 242 Ill. App. 3d 954.

Porter and Baugh suggest that once the gist of a claim is stated the court should proceed, not to appoint counsel, but to decide whether the claim is frivolous or patently without merit. (Porter, 122 Ill. 2d at 74, 521 N.E.2d at 1161.) That decision should be based on the merits, not the form of the pleadings, although in section 122— 2.1(a)(2) the use of the word “patently” indicates that any consideration of the merits should be a limited one. (111. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(a)(2).) Dredge indicates where the stopping point is to be found: what is stated in the pleading is to be accepted unless there is a basis for rejecting it on the merits; unless it is contradicted by something which appears in the trial record. A trial court (or an appellate court) is not limited to what is said in the petition, and may decide a post-conviction petition by what it finds in the record, although a trial court is not bound to search the record in the absence of allegations “raising” a relevant issue. (Porter, 122 Ill. 2d at 76, 521 N.E.2d at 1162.) Of course some matters, such as what counsel told defendant, will not be included in the trial record. Dredge allows a trial court to reject naked allegations which are refuted by something in the record. Dredge may also allow a trial court to reject allegations which have some support in affidavits or otherwise, if those allegations are clearly overcome by other information in the record. Dredge does not, however, allow allegations to be rejected at the first stage just because the trial court is unaware of any factual support for them, as the majority opinion does here.

A petition which does not even state the gist of a claim should be dismissed without proceeding any further. The majority’s most persuasive argument is that the petition here was not sufficiently specific. Porter does say that a petitioner under the Act “must set forth the specific manner in which his rights were violated,” and cites section 122 — 2.1 for that proposition. (Porter, 122 Ill. 2d at 74, 521 N.E.2d at 1161.) (The appropriate reference would appear to be to section 122 — 2 of the Act.) Still, Porter is not inconsistent with Dredge. To explain what “specific” means, Porter (122 Ill. 2d at 74, 521 N.E.2d at 1161) quotes the “gist of [a] claim” language from Baugh, repeated in Dredge. The majority argues the petition here had “zero specificity” (emphasis in original) (242 Ill. App. 3d at 947), but surely that is not correct. The petition did more than assert that petitioner was entitled to relief under the Act, and did more than assert that counsel was ineffective or did not do a good job. Petitioner does not simply “indicate, without more, that [she] wish[es] to seek post-conviction relief.” (Porter, 122 Ill. 2d at 75, 521 N.E.2d at 1162.) Specificity is a relative thing as any petition could be made more specific, but section 122 — 2.1 of the Act does not give petitioner a second chance. As previously mentioned, the majority concedes petitioner states the gist of a claim which would afford a basis for relief under the Act. Neither Porter nor Dredge requires petitioner to be any more specific than that. Petitioner’s allegation that she was coerced by counsel into accepting a 15-year sentence is as specific as the allegation in Dredge that counsel did not allow that petitioner to testify in her own behalf.

The right to counsel at a post-conviction proceeding is a matter of legislative grace and favor. (Porter, 122 Ill. 2d at 73, 521 N.E.2d at 1161.) If the legislature intended that post-conviction petitioners should not have counsel, it could easily have drafted such a rule, but no such language appears in the Act. Surely the legislature would not have provided a right to counsel which was only illusory: a right which would come into existence only if a pro se petitioner met an impossible pleading burden.