Illinois Supreme Court Reports
PEOPLE v. PENDLETON, 100493 (Ill. 12-21-2006) THE PEOPLE OF
THE STATE OF ILLINOIS, Appellant, v. PHILBERT PENDLETON,
Appellee. Docket No. 100493 Supreme Court of Illinois.
Opinion filed December 21, 2006.
OPINION
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald,
Kilbride, and Garman concurred in the judgment and opinion.
Justice Burke took no part in the decision.
Pursuant to a plea agreement, defendant, Philbert
Pendleton, pled guilty in the circuit court of Ogle County
to two counts of home invasion and two counts of aggravated
criminal sexual assault. In exchange for the guilty pleas,
the State agreed not to charge petitioner with an unrelated
offense. No agreement was reached as to sentence. The
circuit court subsequently sentenced defendant to
consecutive terms of 15 years for the first count of home
invasion, 30 years for the second, and 30 years for one of
the aggravated criminal sexual assault counts. Neither a
postjudgment motion nor a notice of appeal was filed. Nearly
a year after sentencing, defendant filed a pro se
postconviction petition. Counsel was appointed for
defendant and subsequently filed an amended petition on his
behalf. The circuit court denied defendant postconviction
relief, and he appealed. The appellate court reversed and
remanded. 356 Ill. App. 3d 863. The appellate court found
that an admonishment issue, which was raised for the first
time on appeal, had been forfeited, but the court concluded
that remand was nonetheless necessary because
postconviction counsel had rendered deficient, unreasonable
assistance in postconviction proceedings. 356 Ill. App. 3d
at 870-71. We allowed the State’s petition for leave to
appeal (177 Ill. 2d R. 315(a)), and now reverse the
judgment of the appellate court. The following facts are
pertinent to our disposition.
BACKGROUND
On August 31, 2001, defendant pled guilty to two counts of
home invasion (720 ILCS 5/12-11(a)(2) (West 2000)) and two
counts of aggravated criminal sexual assault (720 ILCS
5/12-14(a)(2), (a)(5) (West 2000)) in exchange for the
State’s agreement not to charge him with an unrelated
offense he allegedly committed in 1997. No agreement was
reached as to sentence.
Prior to taking defendant’s guilty pleas, the circuit court
conducted meticulous inquiries and admonishments pursuant
to Supreme Court Rule 402 (177 Ill. 2d R. 402) in order to
ensure that defendant’s guilty pleas were informed,
knowing, and voluntary. We set forth, at length, portions
of the colloquy between defendant and the court.
The circuit court first asked defendant if he was “in good
health physically and mentally,” to which defendant
responded affirmatively. Defendant said he was not taking
any prescription drugs or medication. The court then read
the charges to defendant and asked if he understood them.
Defendant indicated he understood; in fact, he took
exception to the language of count I, and that charge was
amended to comport with defendant’s version of events.
Thereafter, sentencing options were explained to defendant.
The court told defendant:
“First three [counts] you could be subject to an extended
term in the Department of Corrections, also that would be
from 30 to 60 years based on the aggravating factor of the
age of the victims being over 60 years. There is a
minimum mandatory six-year prison sentence involved in
regard to all of these offenses, do you understand that?”
Defendant indicated he understood. The court then advised
defendant “there would be a three year mandatory supervised
release period” upon his release from prison. Defendant
again indicated he understood. Pursuant to the State’s
request, the court addressed the possibility of consecutive
sentencing:
“THE COURT: Mr. Pendleton. If, in fact, it is determined
that under Counts II and III, were [sic] part of a single
course of conduct, there’s no substantial change in the
criminal objective, and whether there is either severe
bodily injury or criminal sexual assault then under Counts
II and III it would be required of me if those findings
are shown at the sentencing hearing [that] you receive
consecutive sentences, that means one sentence ends, the
other begins, you will not serve them at the same time. Do
you understand that?
THE DEFENDANT: Yes, sir.
* * *
THE COURT: Also discretionary consecutive sentences in
regard to all charges, that would be up to the court at
the time of the sentence, do you understand that?
THE DEFENDANT: Yes, sir.”
After giving defendant those admonishments, the court
proceeded, first, to inform defendant of the rights he
would give up by pleading guilty and, second, to ascertain
that defendant had consulted with counsel:
“THE COURT: All right. You also understand that if you
plead guilty today you give up certain rights? You give up
the right to have a trial before a judge or jury; you give
up the right to meet and confront the witnesses against
you and present evidence in your own behalf; and the
right to remain silent and make the State prove this
charge against you beyond a reasonable doubt. Do you
understand the rights you’d be giving up today if you
plead guilty?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand there will be no trial in
any of these charges if you plead guilty?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Have you had a chance to talk to
[defense counsel] about this?
THE DEFENDANT: Yes, sir.
THE COURT: And you’ve had some considerable time with him
talking about it over the days?
THE DEFENDANT: Yes.
THE COURT: Do you have any other questions you want to ask
[defense counsel] today before we proceed any further?
THE DEFENDANT: No, sir.
THE COURT: You have a clear understanding where we’re at
right now?
THE DEFENDANT: Yes, sir.”
With that, the court asked defendant, successively, with
respect to each charge, how he pled, guilty or not guilty.
Defendant, without hesitation, pled guilty to each charge.
The court then asked defendant whether he was pleading
guilty to each of those charges of his “own free will,” and
defendant again responded affirmatively. When asked if
anyone had threatened him to get him to plead guilty,
defendant stated, “Not at all.” When the court inquired
whether there had been any promises made to him to get him
to plead guilty, defendant responded negatively. At that
point in the proceedings, the State interrupted for purposes
of clarification, noting the State’s agreement not to
charge defendant with an unrelated offense he allegedly
committed in 1997. The court then asked defendant, “That’s
been told to you Mr. Pendleton?” Defendant confirmed that
was part of the plea agreement.
At the court’s request, the prosecutor provided a factual
basis as to each charge. Defense counsel stipulated that
would be the State’s evidence. Thereupon, the circuit court
found factual bases for the guilty pleas, found that the
defendant’s pleas were knowing and voluntary, and accepted
defendant’s guilty pleas, setting the matter over for a
sentencing hearing.
Since defendant raised no sentencing issue in the appellate
court, and he advances no claim of sentencing error in
briefs or oral argument before this court, there is no need
to recount the events of defendant’s sentencing hearing.
Suffice it to say that a sentencing hearing was conducted
on November 8, 2001, and, at the conclusion of that
hearing, the circuit court imposed a 75-year aggregate
prison sentence, consisting of consecutive terms of 15
years for the first home invasion count, 30 years for the
second home invasion count, and 30 years for one of the
aggravated criminal sexual assault counts. After sentencing
defendant, the circuit court advised him as follows:
“You have the right to appeal the sentence which I have
imposed here today. You have the right to ask me to
reconsider the sentence. You have the right to file a
motion within 30 days and [defense counsel] can assist you
in that. If you want me to reconsider the sentence, you
file the motion within 30 days.
If you want to appeal the sentence you have the right to
have a lawyer and a transcript of everything I’ve done
here. If you can’t afford those you can have those free of
charge.
Any claim of error that you want to raise on appeal has
to be put into that written motion filed within the next
30 days or you can’t bring it up on appeal. That’s all for
today.”
Defendant did not file a postjudgment motion or a notice of
appeal. However, the common law record indicates that
defendant sent a letter to the circuit clerk of Ogle County
in June of 2002, inquiring about the status of his appeal.
In that letter, defendant stated that he had instructed his
public defender “to appeal” his “conviction and sentence.”
Defendant said he had not heard from the Office of the
State Appellate Defender and he was thus “concerned”
because he did not know whether his case was “under
appeal.” Defendant asked the circuit clerk to send him a
status report of his case. In his letter of June 2002,
defendant did not mention a motion to withdraw guilty plea
or suggest that he had asked trial counsel to file one.
The next document appearing in the common law record is
defendant’s pro se postconviction petition, which bears a
file stamp of October 30, 2002. In that petition, defendant
alleged that improper evidence was presented at his
sentencing hearing and that trial counsel was ineffective
insofar as counsel did not object to that evidence.
Defendant also claimed he had “informed his counsel that he
wished to withdraw his guilty plea and asked counsel to
file the appropriate papers.” He contended, inter alia,
that trial counsel “was ineffective for failing to file
a motion to withdraw and vacate his guilty plea.” Defendant
did not suggest that his guilty pleas were not knowingly
and voluntarily entered. He did not specify any basis for
withdrawal of his guilty plea.
The circuit court appointed counsel to represent defendant,
and, on April 21, 2003, counsel filed an amended
postconviction petition on defendant’s behalf. At the time
he submitted defendant’s amended postconviction petition,
counsel filed a certificate of compliance pursuant to
Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). The
certificate recited that counsel had (1) consulted with the
defendant “to ascertain his contentions of deprivation of
constitutional right,” (2) “examined the record of the
proceedings at the trial,” and (3) “made any necessary
amendments to the petition filed pro se.” In the amended
petition, counsel “incorporate[d] all allegations contained
in the previously filed pro se petition” and, “in addition
to” those allegations, alleged that trial counsel had
rendered ineffective assistance insofar as counsel had (1)
failed to provide sufficient information to an expert
psychologist who testified for the defense at the
sentencing hearing; and (2) allowed defendant to testify at
the sentencing hearing that he had committed other
uncharged criminal offenses. Neither the original petition,
nor the amended petition, raised an admonishment issue. The
State filed an answer to the petitions, requesting
dismissal of the petitions and “such other relief as is
just.”
At a May 21, 2003, hearing on defendant’s
petitions-conducted by the same judge who had taken
defendant’s plea and had subsequently sentenced
him-postconviction counsel first confirmed that the circuit
court had before it transcripts from defendant’s guilty
plea and subsequent sentencing, and then asked the court to
take judicial notice of those transcripts. Counsel, with
defendant present, indicated he would present no additional
evidence and would confine his argument to points in the
amended petition relating to defendant’s sentencing hearing.
With respect to defendant’s original, pro se petition,
counsel stated:
“Mr. Pendleton’s original petition is incorporated
herein, and we would rest on the argument made in the
memorandum of law in support of that post-conviction
petition as signed and sworn to by Mr. Pendleton.”
In the memorandum supporting his pro se postconviction
petition, defendant argued only sentencing error, and the
only relief he requested was an “evidentiary hearing or a
new sentencing hearing.” After counsel finished his
argument on points raised in the amended petition, the
State responded by first addressing matters raised in
defendant’s pro se petition:
“I’m going to start at the beginning of the first
petition that was filed by Mr. Pendleton, if I could go in
order. As to 2(a) [of the pro se petition], the allegation
that it is a violation of his rights that after the plea
was entered and the sentence imposed that he informed his
counsel he wished to withdraw his guilty plea and that he
asked counsel to file the appropriate papers. I know
[postconviction counsel] did not argue these two points in
this petition directly. However, because my understanding
is that they still remain a part of this petition, I do
want to at least briefly address them.”
Citing this court’s decision in People v. Edwards, 197 Ill.
2d 239 (2001), the State argued it is not enough for a
defendant in the second stage of postconviction proceedings
to simply allege that he asked trial counsel to file a
motion to withdraw his guilty plea and pursue an appeal,
and that counsel failed to do so. Quoting from Edwards, the
State noted that such a defendant must provide “some
explanation of the grounds that could have been presented
in the motion to withdraw the plea.” See Edwards, 197 Ill.
2d at 257-58. With that observation, the State went on to
address claims of ineffective assistance of counsel related
to defendant’s sentencing, the focus of both the pro se
postconviction petition and the amended petition.
In response, postconviction counsel argued, inter alia,
that Edwards does not control the result in this case
because Edwards involved disposition of a defendant’s
postconviction petition during the first stage of
postconviction proceedings, i.e., pronouncements regarding
subsequent stages were not necessary to the court’s
disposition.
The circuit court took the matter under advisement and, in
an order entered June 16, 2003, denied defendant’s request
for
postconviction relief. The court’s order notes that one of
the issues presented at the May 21 hearing concerned trial
counsel’s alleged failure to “file a motion to withdraw the
Defendant’s guilty plea after being requested to do so.”
Citing this court’s decision in Edwards, the circuit court
observed:
“Defendant has failed to present any basis, assert any
grounds or present any evidence by which a motion to
withdraw plea of guilty would be successful. The
Defendant’s claim in this respect is not supported by the
pleadings or the evidence and will be denied.”
The circuit court also rejected defendant’s other claims
of ineffective assistance, which were based on trial
counsel’s conduct at sentencing.
Defendant appealed, abandoning all of the arguments raised
in his postconviction petitions. Instead, defendant argued
for the first time that, after he pled guilty and was
sentenced, the trial court failed to properly admonish him
pursuant to Supreme Court Rule 605(b) and that he is,
therefore, entitled to a new hearing for proper Rule 605(b)
admonishments. 356 Ill. App. 3d at 864. Defendant further
contended that his postconviction counsel rendered
“ineffective” assistance insofar as he failed to include
the admonishment issue in the amended petition. 356 Ill.
App. 3d at 864.
Acknowledging our recent decision in People v. Jones, 213
Ill. 2d 498 (2004), the appellate court first noted that
defendant had forfeited his admonishment issue. 356 Ill.
App. 3d at 864, 868-69. In Jones, a case involving a pro se
defendant and summary dismissal of a postconviction
petition at the first stage of postconviction proceedings,
we reiterated the general rule that claims not raised in a
postconviction petition cannot be argued for the first time
on appeal.
Notwithstanding defendant’s forfeiture of the issue, the
appellate court in this case went on to consider and
purportedly decide the admonishment issue, “indirectly,”
concluding, in the early portion of the opinion, that
“postconviction counsel was ineffective for failing to
raise the admonishment issue in the [amended] petition.”
356 Ill. App. 3d at 864. In the latter part of the appellate
court’s opinion, the court also appeared to fault
postconviction counsel for not raising trial counsel’s
ineffectiveness in “failing to preserve defendant’s right
to a direct appeal.” 356 Ill. App. 3d at 870-71. That
separate and distinct assessment-rendered on an issue
defendant had not even raised on appeal-appears to be
proffered as both an independent indicator of
postconviction counsel’s allegedly deficient representation,
and as an analytical bridge to salvage defendant’s
forfeited admonishment issue. Notwithstanding counsel’s
certificate of compliance, which indicates that counsel
fulfilled his obligations under Rule 651(c), the appellate
court opined that counsel’s review of the prior proceedings
in the case was deficient, as the court’s concluding
remarks indicate:
“Despite the certification by postconviction counsel, we
conclude that defendant did not receive the reasonable
level of assistance of counsel required by the Act. In
defendant’s pro se petition, he stated that `after the
plea was entered and sentences imposed, defendant
informed his [trial] counsel that he wished to withdraw
his guilty plea and defendant asked counsel to file the
appropriate papers.’ This assertion alone should have
alerted postconviction counsel that trial counsel might
have been ineffective for failing to preserve defendant’s
right to a direct appeal. As discussed, Rule 605
admonishments are a necessary antecedent to the filing of
such an appeal. [Citation.] We believe that a reasonable
review of the guilty plea proceedings would have
disclosed that the trial court’s admonishments were
inadequate under Rule 605(b), a point conceded by the
State on appeal. Such a review of the guilty plea
proceedings is mandated by Rule 651(c) and, in any event,
would be necessary to an investigation of defendant’s pro
se claim of his trial counsel’s ineffectiveness. Under
these circumstances, we conclude that postconviction
counsel rendered unreasonable assistance and that
defendant is entitled to an opportunity to move to
withdraw his guilty plea.” 356 Ill. App. 3d at 870-71.
As we will explain hereafter, we find the appellate court’s
reasoning flawed, as it ignores established principles of
procedural default and it fails to follow established law
governing the scope of postconviction counsel’s duties.
Thus, we cannot subscribe to the court’s conclusions or
affirm its judgment.
ANALYSIS
The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.
(West 2000)) provides a means by which a defendant may
challenge his conviction or sentence for violations of
federal or state constitutional rights. People v.
Whitfield, 217 Ill. 2d 177, 183 (2005). To be entitled to
postconviction relief, a defendant must show that he has
suffered a substantial deprivation of his federal or state
constitutional rights in the proceedings that produced the
conviction or sentence being challenged. Whitfield, 217
Ill. 2d at 183. Rule 605 admonishments are “not
constitutionally required as a matter of due process.”
People v. Breedlove, 213 Ill. 2d 509, 519 (2004).
In cases not involving the death penalty, the Act provides
for postconviction proceedings that may consist of as many
as three stages. At the first stage, the circuit court has
90 days to review a petition and may summarily dismiss it
if the court finds it is frivolous and patently without
merit. 725 ILCS 5/122-2.1(a)(2) (West 2000). If the
petition is not dismissed within that 90-day period, the
circuit court must docket it for further consideration. 725
ILCS 5/122-2.1(b) (West 2000).
At the second stage of postconviction proceedings, counsel
may be appointed for defendant, if defendant is indigent.
725 ILCS 5/122-4 (West 2000). Counsel’s duties, pursuant to
Rule 651(c), include consultation with the defendant to
ascertain his contentions of deprivation of constitutional
right, examination of the record of the proceedings at the
trial, and amendment of the petition, if necessary, to
ensure that defendant’s contentions are adequately
presented. 134 Ill. 2d R. 651(c). Fulfillment of the third
obligation does not require counsel to advance frivolous or
spurious claims on defendant’s behalf. People v. Greer, 212
Ill. 2d 192, 205 (2004). Moreover, “[p]ost-conviction
counsel is only required to investigate and properly
present the petitioner’s claims.” (Emphasis in original.)
People v. Davis, 156 Ill. 2d 149, 164 (1993); see also
People v. Vasquez, 356 Ill. App. 3d 420, 425 (2005). We
note that a defendant in postconviction proceedings is
entitled to only a “reasonable” level of assistance, which
is less than that afforded by the federal or state
constitutions. People v. Munson, 206 Ill. 2d 104, 137
(2002).
After counsel has made any necessary amendments to the
petition, the State may move to dismiss a petition or an
amended petition pending before the court. 725 ILCS 5/122-5
(West 2000). If that motion is denied, or if no motion to
dismiss is filed, the State must answer the petition, and,
barring the allowance of further pleadings by the court,
the proceeding then advances to the third stage, a hearing
wherein the defendant may present evidence in support of
the petition. 725 ILCS 5/122-6 (West 2000).
Throughout the second and third stages of a postconviction
proceeding, the defendant bears the burden of making a
substantial showing of a constitutional violation. People
v. Coleman, 206 Ill. 2d 261, 277 (2002); Edwards, 197 Ill.
2d at 246. At the second stage of proceedings, all
well-pleaded facts that are not positively rebutted by the
trial record are to be taken as true, and, in the event the
circuit court dismisses the petition at that stage, we
generally review the circuit court’s decision using a de
novo standard. People v. Childress, 191 Ill. 2d 168, 174
(2000). When a petition is advanced to a third-stage,
evidentiary hearing, where fact-finding and credibility
determinations are involved, we will not reverse a circuit
court’s decision unless it is manifestly erroneous.
Childress, 191 Ill. 2d at 174. If no such determinations
are necessary at third stage, i.e., no new evidence is
presented and the issues presented are pure questions of
law, we will apply a de novo standard of review, unless the
judge presiding over postconviction proceedings has some
“special expertise or familiarity” with the trial or
sentencing of the defendant and that “familiarity” has some
bearing upon disposition of the postconviction petition.
See People v. Caballero, 206 Ill. 2d 65, 87-88 (2002).
Before we proceed further in our analysis, we will first
summarize the circumstances of defendant’s case. The
circuit court advanced defendant’s petition to the second
stage of postconviction proceedings, thus affording
defendant the advantages of appointed counsel. Clearly,
postconviction counsel examined defendant’s pro se petition
and the record-in particular the transcript of the
sentencing hearing-in the course of filing an amended
petition that expanded upon the sentencing issues which
were the focus of defendant’s pro se petition, and in
arguing those sentencing issues to the circuit court. The
transcript of the sentencing hearing concluded with the
Rule 605 admonishments at issue: admonishments that were
adequate to apprise defendant of the steps necessary to
preserve and appeal the sentencing issues which he
ultimately raised in postconviction proceedings, but were
inadequate to advise defendant of the procedure for
challenging his plea of guilty, if that is what defendant
intended to do.
The circuit court properly advised defendant that he had to
first file a motion to reconsider the sentence if he wanted
to appeal his sentence. Defendant does not suggest that he
ever asked trial counsel to do that. Although the circuit
court did not advise defendant that he had to file a motion
to withdraw his guilty plea if he wanted to challenge some
other aspect of the proceeding, since defendant claims that
he directed trial counsel to file that very motion, it is
difficult to discern how defendant would have been
prejudiced by the court’s incomplete admonishment.
In either case, as the appellate court acknowledged, even a
liberal reading of defendant’s petitions reveals no
reference to an admonishment issue in either the
defendant’s pro se petition or the amended petition. 356
Ill. App. 3d at 869. As noted, there is an allegation in
defendant’s pro se petition that defendant directed trial
counsel to file a motion to withdraw guilty plea, and
counsel failed to do so, but that allegation bears no
rational relationship to an admonishment issue, given the
circumstances of this case. The admonishment issue aside,
we emphasize that defendant’s pro se postconviction
petition was only a page and a half in length. It seems
unlikely that postconviction counsel could have overlooked
any issue therein. If, as is the case here, counsel chose
not to include a certain claim from defendant’s pro se
petition in an amended petition, one might well infer that
counsel made a decision not to pursue it.
In any event, we need not resolve this case on the merits
of defendant’s arguments because defendant has forfeited
the admonishment issue under general principles of
procedural default. Pursuant to principles set forth in our
analyses in Jones and Davis, the admonishment issue is
forfeited because defendant did not raise the issue in
either his pro se petition or an amended petition. See
Jones, 213 Ill. 2d at 505 (observing that “this court has
generally held that a claim not raised in a petition cannot
be argued for the first time on appeal”); Davis, 156 Ill.
2d at 158-60 (stating that “[a]ny claim of substantial
denial of constitutional rights not raised in the original
or an amended petition is waived”). Defendant did not claim
in either his pro se petition or his amended petition that
the Rule 605 admonishments given him were inadequate. Thus,
that issue is forfeited. As we noted in Jones, “our
appellate court has repeatedly overlooked the waiver
language of [the Act] and has addressed claims raised for
the first time on appeal for various and sundry reasons.”
Jones, 213 Ill. 2d at 506. The appellate court’s
disposition in this case is yet another example of that
inappropriate propensity.
With respect to the deficient-assistance prong of the
appellate court’s analysis, we note that defendant cannot
successfully maintain that postconviction counsel rendered
deficient assistance in failing to raise the admonishment
issue, because “[p]ost-conviction counsel is only required
to investigate and properly present the petitioner’s
claims.” (Emphasis in original.) Davis, 156 Ill. 2d at 164.
In that regard, Rule 651(c) only requires postconviction
counsel to examine as much of the record “as is necessary
to adequately present and support those constitutional
claims raised by the petitioner.” Davis, 156 Ill. 2d at
164. Defendant did not raise an admonishment issue in his
pro se petition. While postconviction counsel may conduct a
broader examination of the record (Davis, 156 Ill. 2d at
164), and may raise additional issues if he or she so
chooses, there is no obligation to do so.
Finally, we observe that defendant has also forfeited any
contention that trial counsel was ineffective for failing
to file a motion to withdraw guilty plea-and that
postconviction counsel was deficient for failing to argue
that point-as defendant apparently did not preserve that
claim by raising it in the appellate court. See Unzicker v.
Kraft Food Ingredients Corp., 203 Ill. 2d 64, 73 (2002)
(“issues that the appellant fails to raise in the appellate
court are waived for purposes of our review”).
Defendant is, of course, free to pursue any defaulted
claims he believes to be of merit by filing a successive
postconviction petition in the circuit court in accordance
with the “cause and prejudice” guidelines set forth in
People v. Pitsonbarger, 205 Ill. 2d 444 (2002). See also
725 ILCS 5/122-1(f) (West 2004) (codifying the
cause-and-prejudice test effective January 1, 2004).
Pursuant to those guidelines, defendant will have to
demonstrate “cause” for failing to raise the error in prior
proceedings and actual “prejudice” resulting from the
claimed error. See People v. Jones, 211 Ill. 2d 140, 148-50
(2004).
For the foregoing reasons, the judgment of the appellate
court is reversed, and that of the circuit court is
affirmed.
Appellate court judgment reversed; circuit court judgment
affirmed.
JUSTICE BURKE took no part in the consideration or decision
of this case.