                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Couch, 2012 IL App (4th) 100234




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    STEVEN COUCH, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-10-0234


Filed                      June 15, 2012
Rehearing denied           July 20, 2012


Held                       Defendant’s postconviction petition alleging that the trial judge was
(Note: This syllabus       biased against him was properly dismissed as frivolous and patently
constitutes no part of     without merit, since the petition was not accompanied by any affidavits,
the opinion of the court   records or other evidence supporting defendant’s claims.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Vermilion County, No. 05-CF-503; the
Review                     Hon. Craig H. DeArmond, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, of State Appellate Defender’s Office, of Springfield,
Appeal                     and Peter A. Carusona and Jay Wiegman, both of State Appellate
                           Defender’s Office, of Ottawa, for appellant.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and Michael M. Glick and Joshua M. Schneider,
                           Assistant Attorneys General, of counsel), for the People.


Panel                      JUSTICE KNECHT delivered the judgment of the court, with opinion.
                           Presiding Justice Turner concurred in the judgment and opinion.
                           Justice Steigmann specially concurred, with opinion.




                                              OPINION

¶1          In December 2009, defendant, Steven Couch, pro se filed a petition under the Post-
        Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-8 (West 2008)), asserting he was
        denied his right to a fair trial because the trial judge, Judge Claudia Anderson, was biased
        against him, given that (1) as a youth he had fought with the trial judge’s stepson and (2) his
        mother had publicly condemned the trial judge for having an affair with a married man.
        Defendant further asserted the trial judge sentenced him based upon facts that she obtained
        from her current husband, “Glen Anderson.” In March 2010, the trial court dismissed
        defendant’s petition at the first stage of postconviction proceedings as frivolous and patently
        without merit based on the fact the trial judge in question did not have a stepson and was not
        married to Glen Anderson.
¶2          Defendant appeals, arguing that the trial court erred by dismissing his postconviction
        petition at the first stage because the trial court failed to accept his assertions. Defendant
        contends that (1) those assertions, if true, would establish the gist of a constitutional claim,
        and (2) the court was required to accept them as true at the first stage of postconviction
        proceedings. We disagree and affirm.

¶3                                       I. BACKGROUND
¶4          In August 2005, the State charged defendant with (1) criminal drug conspiracy (720 ILCS
        570/405.1 (West 2004)), (2) three counts of delivery of a controlled substance (15 grams or
        more but less than 100 grams of a substance containing cocaine) (720 ILCS 570/401(a)(2)(A)
        (West 2004)), and (3) delivery of cannabis (more than 30 grams but not more than 500 grams
        of a substance containing cannabis) (720 ILCS 550/5(d) (West 2004)). The jury convicted
        defendant on all counts. Following a September 2007 sentencing hearing, the trial court,

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     Judge Claudia Anderson, sentenced defendant to (1) concurrent prison terms of 26, 5, and
     20 years on three counts, and (2) 20 years in prison on a separate count, which the court
     ordered to be served consecutively to his 26-year prison sentence.
¶5       Defendant appealed, arguing only Judge Anderson (1) erred by not instructing the jury
     on the affirmative defense of entrapment and (2) abused her discretion by imposing
     consecutive sentences. In People v. Couch, 387 Ill. App. 3d 437, 438, 899 N.E.2d 618, 619
     (2008), we rejected defendant’s contentions and affirmed.
¶6       In December 2009, defendant pro se filed a postconviction petition, asserting, in pertinent
     part, he was denied his right to a fair trial because Judge Anderson was biased against him,
     given that (1) as a youth he fought with Judge Anderson’s stepson and (2) his mother had
     publicly condemned Judge Anderson for having an affair with a married man. Defendant
     further asserted that Judge Anderson sentenced him based upon facts that she obtained from
     her current husband, Glen Anderson. In March 2010, Judge Craig H. DeArmond dismissed
     defendant’s petition at the first stage of postconviction proceedings, explaining as follows:
             “5. [Defendant’s] post[ ]conviction petition includes allegations against [Judge
         Anderson] which are known to be false since they allegedly involve [Judge Anderson’s]
         ‘stepson’. This Court has known [Judge Anderson] for over 35 years and knows she has
         no stepson. He alleges [that she was] previous[ly] marri[ed] to one ‘John Smith’. This
         Court is aware Judge Anderson is still married to the only person she has ever been
         married to and his name is not John Smith. [Defendant] identifies her current husband
         as Glen Anderson[,] which is not the name of [her] husband.
             6. As a result, all of the allegations against [Judge Anderson] based on some
         perceived bias or prejudice because of the false statements regarding her family
         relationships and [defendant’s] alleged involvement in those relationships are frivolous
         and patently without merit.
                                                ***
             9. [Defendant’s] claims about information dehors the record which may have
         impacted his sentence are based upon nonexistent sources since they purport to come
         from someone who does not exist, i.e., the trial court’s husband ‘Glen Anderson.’ ”
¶7       This appeal followed.

¶8                                       II. ANALYSIS
¶9       Defendant argues the trial court erred by dismissing his postconviction petition at the first
     stage because the trial court failed to accept his assertions. Defendant contends (1) those
     assertions, if true, would establish the gist of a constitutional claim, and (2) the court was
     required to accept them as true at the first stage of postconviction proceedings. The State
     concedes this argument asserting the trial court should not have relied on its own knowledge
     to dismiss the petition. See People v. Wallenberg, 24 Ill. 2d 350, 354, 181 N.E.2d 143, 145
     (1962). The State argues this court should affirm the dismissal on the ground that defendant’s
     petition was technically deficient under the Act. We agree with the State.



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¶ 10                  A. Proceedings Under the Act and the Standard of Review
¶ 11        A defendant may proceed under the Act by asserting that in the proceedings which
       resulted in his conviction, a “substantial denial” of his rights occurred under the Constitution
       of the United States or of the State of Illinois. 725 ILCS 5/122-1(a)(1) (West 2008). The Act
       establishes a three-stage process for adjudicating a postconviction petition. 725 ILCS 5/122-1
       to 122-8 (West 2008); People v. Andrews, 403 Ill. App. 3d 654, 658, 936 N.E.2d 648, 652
       (2010). At the first stage, the trial court examines the postconviction petition only to
       determine whether the petition alleges a constitutional deprivation that is unrebutted by the
       record, rendering the petition neither frivolous nor patently without merit. Andrews, 403 Ill.
       App. 3d at 658, 936 N.E.2d at 652. Section 122-2.1 of the Act directs if the trial court
       determines the petition is frivolous or patently without merit, it shall be dismissed in a
       written order. 725 ILCS 5/122-2.1(a)(2) (West 2008); Andrews, 403 Ill. App. 3d at 658, 936
       N.E.2d at 652-53.
¶ 12        If a petition is not dismissed at stage one, it proceeds to stage two, where section 122-4
       of the Act provides for the appointment of counsel for an indigent defendant who wishes
       counsel to be appointed. 725 ILCS 5/122-4 (West 2008). At the second stage, the State has
       the opportunity to answer or move to dismiss the petition. 725 ILCS 5/122-5 (West 2008).
       If the trial court does not grant the State’s motion to dismiss or if the State has filed an
       answer, the petition proceeds to the third stage, where the defendant may present evidence
       in support of his petition. 725 ILCS 5/122-5, 122-6 (West 2008); People v. Bland, 2011 IL
       App (4th) 100624, ¶ 28, 961 N.E.2d 953.
¶ 13       When, as here, the trial court dismisses a defendant’s postconviction petition at the first
       stage, our review is de novo. People v. Brown, 236 Ill. 2d 175, 184, 923 N.E.2d 748, 754
       (2010).

¶ 14                                B. Proceedings in This Case
¶ 15         Judge DeArmond dismissed defendant’s postconviction petition at the first stage as
       “frivolous and patently without merit” because Judge DeArmond believed he possessed
       personal knowledge defendant’s postconviction claims related to Judge Anderson were not
       true. Based on Judge DeArmond’s comments in the record and the assertions of defendant,
       it is highly probable defendant’s petition is frivolous. It is unfortunate to use scarce resources
       on such flotsam. However, a judge may not make a ruling based only on what that judge
       thinks he knows about the personal life of another judge.
¶ 16         The special concurrence discusses a reality-based exception to rules of pleading using the
       example of an alleged alien judge from the planet Zenon. Infra ¶ 29 (Steigmann, J., specially
       concurring). The Supreme Court of Illinois noted several years ago fanciful allegations that
       describe fantastic or delusional scenarios are frivolous. People v. Hodges, 234 Ill. 2d 1, 13,
       912 N.E.2d 1204, 1210 (2009). While defendant’s allegations are unlikely, they are not
       delusional or fantastic.
¶ 17         The defendant’s allegations are likely untrue but they are possible. They should be
       confirmed as untrue rather than relying upon what the special concurrence thinks it knows
       about what the trial judge thinks he knows about the personal life of another judge. The glib

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       “I know it when I see it” (infra ¶ 33 (Steigmann, J., specially concurring)) is but a variation
       on the “well, everybody knows . . .” approach to life. That is not our standard of review.
¶ 18       In People v. Rivera, 198 Ill. 2d 364, 372, 763 N.E.2d 306, 310 (2001), the supreme court
       noted section 122-2.1 of the Act provides for a simplified procedure to ensure the criminal
       justice system’s limited resources are expended where most needed. It is understandable to
       decry the use of scarce resources to respond to this postconviction petition. However, we
       must rely on the record, and we may affirm the trial court’s judgment on any basis supported
       by the record. People v. DeBerry, 372 Ill. App. 3d 1056, 1058, 868 N.E.2d 382, 383 (2007).
¶ 19       The State argues (1) the petition was untimely, (2) the petition was not verified and (3)
       the petition was not supported by any affidavits, records, or other evidence. We need only
       address the third argument. Defendant claimed the allegations in his postconviction petition
       were true and correct, but he failed to attach any affidavits, records, or other evidence to
       support his claims. He failed to explain the absence of such documents or other evidence.
¶ 20       The Act requires affidavits, records, or other evidence to support such claims, and if
       missing, to explain why they are not attached to the petition. 725 ILCS 5/122-2 (West 2008).
       The failure to do so is fatal to his petition. People v. Delton, 227 Ill. 2d 247, 258, 882 N.E.2d
       516, 522 (2008).

¶ 21                                    III. CONCLUSION
¶ 22       We affirm the trial court’s judgment.

¶ 23       Affirmed.

¶ 24       JUSTICE STEIGMANN, specially concurring.
¶ 25       Every so often, a case comes along that provides a court of review the opportunity to
       clarify or define the limits of an otherwise uncontroversial legal doctrine. This is one of those
       cases, and although I agree with the majority’s conclusion to affirm the trial court’s
       judgment, I regret that the majority has chosen not to use this case to provide guidance in
       future cases involving postconviction petitions. Accordingly, I write this special concurrence
       to offer my views regarding what that guidance should be.
¶ 26       The legal doctrine at issue in this case is the rather uncontroversial rule that all well-
       pleaded facts in a postconviction petition must be accepted as true. See Brown, 236 Ill. 2d
       at 193, 923 N.E.2d at 759. This doctrine makes good sense, and in my decades of dealing
       with postconviction petitions, I do not recall any instance in which a court had need to
       question it. Until now.
¶ 27       In this case, Judge DeArmond dismissed defendant’s postconviction petition at the first
       stage as “frivolous and patently without merit” because Judge DeArmond possessed personal
       knowledge that defendant’s postconviction claims related to Judge Anderson were not
       reality-based. In other words, defendant’s claims of constitutional deprivation were based
       on assertions that Judge DeArmond knew were not true. Thus, Judge DeArmond’s dismissal
       on this ground violated the above legal doctrine because he did not accept as true all of the

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       well-pleaded facts in defendant’s petition. But, as this case shows, this legal doctrine cannot
       be absolute and inflexible.
¶ 28       When, as here, a trial court considering a defendant’s postconviction petition at the first
       stage knows personally that the petition is not reality-based, it would be absurd to require
       that the court must nonetheless accept the petition’s assertions unless they are contradicted
       by the record. And this court should not accept the notion that the legislature, when enacting
       section 122-2.1 of the Act, or the Supreme Court of Illinois when construing that section,
       requires such an absurdity.
¶ 29       Adopting defendant’s view that the trial court must accept all facts alleged at the first
       stage of postconviction proceedings that, if true, would establish the gist of a constitutional
       claim, we would essentially be requiring trial courts to accept any scenario, however
       ridiculous. For example, under defendant’s interpretation of section 122-2.1 of the Act, trial
       courts would be required to advance to the second stage of postconviction proceedings a
       defendant’s petition that alleged (1) he had personal knowledge that his trial judge was an
       alien from the planet Zenon and (2) the due-process clause of the United States Constitution
       guarantees that the judge who presides at his trial must be a human being. In this
       hypothetical, defendant’s second point might well be right. The problem is that his first
       claim–namely, that he had personal knowledge that the trial judge was an alien from the
       planet Zenon–is not reality-based. And so it is with the claims underlying defendant’s
       postconviction petition in this case.
¶ 30       This court should conclude that the rule that the trial court must accept all well-pleaded
       facts as true at the first stage of postconviction proceedings contains the reality-based
       exception discussed herein. I would expect this exception to apply only in rare cases. But,
       as this case demonstrates, such cases can arise, and when a trial court is confronted with a
       postconviction petition that is not reality-based, the court should not be required to look the
       other way, advance the petition to the second stage, and go to the bother and expense of
       appointing counsel for the petitioner. Anything less would basically allow future petitioners
       to circumvent the first stage of postconviction proceedings by “well pleading” any allegation
       they could dream up.
¶ 31       I deem such a conclusion consistent with the observation of the supreme court in People
       v. Rivera, 198 Ill. 2d 364, 372, 763 N.E.2d 306, 310 (2001), that section 122-2.1 of the Act
       provides for a simplified procedure to ensure that the criminal justice system’s limited
       resources are expended where most needed. Those scarce resources ought not be expended
       in response to postconviction petitions that are not reality-based.
¶ 32       I acknowledge that in the context of postconviction petitions, this special concurrence
       is using the term “reality-based” for this first time and not defining it. However, a definition
       or further clarification is not necessary. Instead, I am reminded of the observations Justice
       Stewart made in his concurring opinion regarding hard-core pornography. In Jacobellis v.
       Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring), Justice Stewart wrote the
       following:
           “I shall not today attempt further to define the kinds of material I understand to be
           embraced within that shorthand description [of ‘hard-core’ pornography]; and perhaps


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           I could never succeed in intelligibly doing so. But I know it when I see it, and the motion
           picture involved in this case is not that.”
¶ 33       In this case, the question was whether defendant’s postconviction petition was reality-
       based. It was not. To paraphrase Justice Stewart, I know it when I see it, and to his credit, so
       did Judge DeArmond.




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