                                      NO. 4-04-0007

                              IN THE APPELLATE COURT

                                       OF ILLINOIS

                                   FOURTH DISTRICT

 THE PEOPLE OF THE STATE OF ILLINOIS,                    )   Appeal from
      Plaintiff-Appellee,                                )   Circuit Court of
      v.                                                 )   Champaign County
 NATHANIEL JACKSON,                                      )   No. 02CF627
      Defendant-Appellant.                               )
                                                         )   Honorable
                                                         )   Jeffrey B. Ford,
                                                         )   Judge Presiding.


              JUSTICE APPLETON delivered the opinion of the court:

              Defendant, Nathaniel Jackson, appeals from the summary dismissal of his

pro se petition for postconviction relief. He makes two arguments: (1) we should

dismiss the office of the State Appellate Defender (OSAD) and allow defendant to

represent himself in this appeal, and (2) the trial court erred in summarily dismissing his

petition, which stated the gist of a claim of ineffective assistance of trial counsel. We

deny defendant's request to represent himself, and we affirm the trial court's judgment.

                                    I. BACKGROUND

              The State charged defendant with burglary (720 ILCS 5/19-1 (West

2002)). Because of his criminal history, the offense was a Class X felony. See 730

ILCS 5/5-5-3(c)(8) (West 2002).

              At trial, a police officer, Jeff Creel, testified he went to Arrowhead Lanes at

approximately 4:30 a.m. on March 25, 2002, in response to a burglar alarm. He noticed

a broken window. David Bolt, one of the owners of the bowling alley, testified he came
to the scene and noticed that someone had pried open the cash registers and emptied

them of $200 to $250 in cash. He also noticed the intruder had broken into some video

games, destroyed two video cameras near the snack bar, and removed a ceiling tile in

the women's bathroom. The police found defendant hiding in the drop ceiling. When

defendant came down, they peered into the ceiling and found a maroon backpack,

which contained a pair of jeans, a knife, an ice pick, and $224 in cash. A videotape

showed someone breaking the window and climbing into the building, and the gloves

and backpack the intruder was wearing matched those that the police found on or near

defendant's person.

              The jury found defendant guilty of burglary, and the trial court sentenced

him to 28 years' imprisonment. On direct appeal, we affirmed the conviction and

sentence. People v. Jackson, No. 4-02-0732 (March 30, 2004) (unpublished order

under Illinois Supreme Court Rule 23).

              Defendant afterward filed a postconviction petition, which the trial court

dismissed as frivolous and patently without merit. He appealed from the summary

dismissal, and this is the appeal presently before us. Three times in the course of this

appeal, defendant filed a pro se motion that we dismiss OSAD and allow defendant to

represent himself. We denied those motions. OSAD has now filed a brief and a reply

brief in defendant's behalf, in which it urges us to reconsider these rulings and grant

defendant's motion to proceed pro se.

                                      II. ANALYSIS

                      A. Defendant's Request To Represent Himself

              Defendant argues (through his appointed counsel) that under Illinois

                                           -2-
Supreme Court Rules 651(c) and 607 (134 Ill. 2d R. 651(c); Official Reports Advance

Sheet No. 22 (October 30, 2002), R. 607, eff. September 30, 2002) as well as section

121-13(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/121-13(a)

(West 2004)), he has the right to represent himself in this appeal. He cites cases which,

according to him, stand for the proposition that "the right to appointed counsel in a

post[]conviction proceeding pursuant to Rule 651(c) may be waived." People v. French,

210 Ill. App. 3d 681, 569 N.E.2d 934 (1991); People v. Williams, 185 Ill. App. 3d 840,

541 N.E.2d 1175 (1989). He notes that the Supreme Court of Illinois has granted

motions by indigent defendants to represent themselves in appeals from postconviction

proceedings (People v. Harrison, 46 Ill. 2d 159, 161, 263 N.E.2d 87, 88 (1970); People

v. Korycki, 45 Ill. 2d 87, 89, 256 N.E.2d 798, 799 (1970); People v. Southwood, 49 Ill. 2d

228, 229, 274 N.E.2d 41, 42 (1971)) and that the United States Supreme Court has

condemned the practice of forcing lawyers upon criminal defendants (Faretta v.

California, 422 U.S. 806, 834, 45 L. Ed. 2d 562, 581, 95 S. Ct. 2525, 2540-41 (1975)).

              Conceding that "Rule 651(c) can be read as implicitly affording a

defendant the right to refuse appointment of counsel[,] as in Rule 607(a)," the State

nevertheless argues that our refusal to allow defendant to proceed pro se is correct

because the record does not show that his waiver of appellate counsel is "voluntary and

intelligent." The State distinguishes Faretta because that case concerned a criminal

trial, whereas the present case concerns an appeal from a postconviction proceeding.

              In his reply brief, defendant observes that if he had requested to waive

appointed counsel at trial, Rule 401(a) (134 Ill. 2d R. 401(a)) would have required the

trial court to give him certain admonitions to ensure that the waiver was voluntary and

                                           -3-
intelligent. He is aware of no authority, however, for requiring such admonitions if he

requests to waive counsel on appeal from postconviction proceedings. He argues it

would be "incongruous to now require [him] to proceed on appeal with appointed

counsel, when he had no constitutional or statutory right to appointed counsel, even if

he had requested it, at the filing stage." (Emphases in original.)

              Although criminal defendants have a sixth-amendment right to represent

themselves at trial (Faretta, 422 U.S. at 819, 45 L. Ed. 2d at 572, 95 S. Ct. at 2533),

they have no federal constitutional right to self-representation on appeal (Martinez v.

Court of Appeal of California, 528 U.S. 152, 154, 145 L. Ed. 2d 597, 602, 120 S. Ct.

684, 687 (2000)). In his brief, defendant makes a reasonable (though belated)

argument that under Rules 651(d) and 607, he has the option of representing himself on

appeal from the dismissal of his postconviction petition. Rule 651(d) provides: "The

procedure for an appeal in a post[]conviction proceeding shall be in accordance with the

rules governing criminal appeals, as near as may be." 134 Ill. 2d R. 651(d). Rule 607,

which is a rule governing criminal appeals, states that if the trial court "determines that

the defendant is indigent and [that the defendant] desires counsel on appeal, the court

shall appoint counsel on appeal." (Emphasis added.) Official Reports Advance Sheet

No. 22 (October 30, 2002), R. 607(a), eff. September 30, 2002. Thus, the appointment

of counsel--and, arguably, the counsel's continuing tenure--is conditional on the

defendant's desire for such counsel. Also, if one interpreted Rule 651 to forbid self-

representation by indigent defendants, this interpretation might put Rule 651 at odds

with section 121-13(a) of the Code, which conditions the appointment of OSAD on the

indigent defendant's "desire[] [for] counsel on appeal" (725 ILCS 5/121-13(a) (West

                                            -4-
2004)).

              These are all, as we said, reasonable arguments, but the time for making

these arguments was earlier, in the motions to proceed pro se. Illinois Supreme Court

Rule 361(a) requires that such motions state not only "the relief sought" but also "the

grounds therefor." 177 Ill. 2d R. 361(a). In his motions, the only authorities defendant

cited that came close to being relevant were Faretta and Martinez, which we have

already discussed, and People v. Bowman, 40 Ill. 2d 116, 123, 239 N.E.2d 433, 438

(1968), in which the supreme court stated: "It has been found to be reversible error to

refuse a criminal defendant's timely request for self-representation." The supreme court

made that statement, however, in the context of self-representation in a guilty-plea

hearing (Bowman, 40 Ill. 2d at 118, 239 N.E.2d at 435), not self-representation in an

appeal from a postconviction proceeding. In his motions, defendant never cited, for

instance, Rule 651(d), Rule 607, or section 121-31(a) of the Code and never made the

arguments grounded on those authorities that he is making now, in his brief. A

reviewing court "is not simply a repository in which appellants may dump the burden of

argument and research." People v. Chatman, 357 Ill. App. 3d 695, 703, 830 N.E.2d 21,

29 (2005). Without such argument and research, "we [were] unable to say whether the

motion[s] should [have been] allowed or not, and [they] *** therefore [had to be]

overruled." People ex rel. Akin v. Kipley, 167 Ill. 638, 638, 48 N.E. 688, 688 (1897).

The burden of persuasion was on the movant. In his brief, defendant admits that "what

constitutes a valid waiver of postconviction appellate counsel *** is a question of first

impression." He could not reasonably expect us to answer that question without the

benefit of a coherent argument and citation of relevant authorities.

                                            -5-
              At this time, the argument for self-representation comes too late. The

attorneys have filed their briefs. To grant defendant's request to proceed pro se at this

late date, we would have to issue a new briefing schedule, and defendant and the State

would have to draft and file new briefs. Even when defendants have a constitutional

right to represent themselves, they must assert that right in a timely (and, we might add,

effective) manner. Bowman, 40 Ill. 2d at 124, 239 N.E.2d at 438; Martinez, 528 U.S. at

162, 145 L. Ed. 2d at 607, 120 S. Ct. at 691. At this point in the appellate process,

judicial efficiency outweighs defendant's interest in individual autonomy (see Martinez,

528 U.S. at 163, 145 L. Ed. 2d at 608, 120 S. Ct. at 692), and we deny his request to

proceed pro se in this appeal.

                          B. Alleged Ineffectiveness of Counsel

              To avoid summary dismissal, a postconviction petition must meet two

requirements. First, it must state the gist of a constitutional claim. People v. Jones, 213

Ill. 2d 498, 504, 821 N.E.2d 1093, 1096 (2004). Second, the postconviction proceeding

must be the earliest possible opportunity for asserting that claim. A trial court should

summarily dismiss a petition "where facts ascertainable from the record reveal the

petition's claims have already been decided, waived, or forfeited." People v. Blair, 215

Ill. 2d 427, 430, 831 N.E.2d 604, 607 (2005). "[I]ssues that were raised and decided on

direct appeal are barred from consideration by the doctrine of res judicata; issues that

could have been raised, but were not, are considered waived." People v. Williams, 209

Ill. 2d 227, 233, 807 N.E.2d 448, 452 (2004).

              Defendant argues that his postconviction petition states the gist of a claim

of ineffective assistance of counsel. Allegedly, his counsel rendered ineffective

                                           -6-
assistance in five ways. First, counsel failed to consult him before waiving the

preliminary hearing. Second, counsel failed to ask him whether he wanted a bench trial

instead of a trial by jury. Third, instead of asking defendant what his real reason was for

being in the bowling alley at 4:30 a.m., counsel presented a defense that was untrue,

namely, that defendant entered the bowling alley to seek shelter from the cold.

Defendant alleged in his petition that he actually was "high on cocaine and alcohol for

three nights [straight,] without any sleep," and "did not realize what [he] was real[l]y

doing." The window of the bowling alley "was already broken," and his "cocaine

addiction *** [led him] to enter into that broken window[,] and[] [he] did not have control[]

over [his] actions from that point." Fourth, counsel never consulted with defendant

before sentencing to ascertain whether there were any mitigating factors. Fifth, counsel

failed to tender an instruction on the included offense of criminal damage to property.

              We considered and rejected the first two contentions on direct appeal.

People v. Jackson, No. 4-02-0732, slip order at 11 (March 30, 2004) (unpublished order

under Illinois Supreme Court Rule 23). Therefore res judicata bars those contentions.

See Williams, 209 Ill. 2d at 233, 807 N.E.2d at 452.

              As for the third contention, defendant's alleged intoxication would have

made no difference in the verdict. Ineffective assistance of counsel has two elements:

(1) defense counsel's performance fell below an objective standard of reasonableness,

and (2) there is a reasonable probability that the outcome of the case would have been

different but for defense counsel's substandard performance. People v. Young, 341 Ill.

App. 3d 379, 383, 792 N.E.2d 468, 472 (2003). Effective January 1, 2002, Illinois no

longer recognized voluntary intoxication as an excuse for criminal conduct. 720 ILCS

                                            -7-
5/6-3 (West 2004). "A person who is in an intoxicated or drugged condition is criminally

responsible for conduct unless such condition is involuntarily produced and deprives

him of substantial capacity either to appreciate the criminality of his conduct or to

conform his conduct to the requirements of law." 720 ILCS 5/6-3 (West 2004). It was

not incompetence to refrain from asserting a defense that the law clearly negated.

              As for the fourth contention, defendant does not state what the mitigating

factors would have been. Without that information, we have no basis for concluding that

(1) any mitigating factors existed and (2) they would have made a difference in the

sentence. See People v. Rodriguez, 313 Ill. App. 3d 877, 887, 730 N.E.2d 1188, 1196

(2000) ("a court may proceed directly to the second prong of the Strickland test and

need not examine effectiveness in the absence of prejudice").

              As for the fifth contention, we find no reasonable probability that an

instruction on the included offense of criminal damage to property would have made any

difference in the outcome of this case. No rational jury would have found that defendant

intended only to damage property. The evidence was overwhelming that he intended to

steal the money in the cash registers and game machines.

                                    III. CONCLUSION

              For the foregoing reasons, we affirm the trial court's judgment.

              Affirmed.

              TURNER, P.J., and MYERSCOUGH, J., concur.




                                            -8-
