Trial court’s order granting a new trial reversed on appeal where trial court used wrong standard to review 2-1401 petition

In People v. Whalen, 2019 IL App (4th) 190171, the State appealed the trial court’s order granting defendant Donald Whalen’s 2-1401 petition vacating his murder conviction and ordering a new trial. The State argued that Whalen’s claims were time barred and should have been dismissed, the trial court’s decision was made on an incorrect standard set forth in People v. Davis, 2012 IL App (4th) 110305, and that the decision was manifestly erroneous. The Fourth District ultimately reversed the trial court’s order and remanded for further proceedings to determine whether a different result would be “probable” based on new evidence in the case.

Whalen was charged with and convicted of the murder of his father, William Whalen, and sentenced to 60 years’ imprisonment. Id. at ¶ 20. At trial, the State disclosed evidence of an alleged match between a bloody latent palm print on a broken pool cue and Whalen. Id. at ¶ 5. A latent print examiner testified that the print left a “put-down” impression and opined that Whalen had blood on his palm prior to grabbing the cue stick. In addition to the palm print, the State presented evidence regarding Whalen’s shoes. The jury was presented with evidence that Whalen regularly wore a model of Converse shoes with a distinctive sole, matching that of the bloody shoe print at the scene. Id. at ¶ 12. The jury heard further evidence that Whalen had disposed of a pair of shoes, matching the print left at the scene, in the days preceding his arrest. Whalen testified on his own behalf and presented two alibi witnesses. Id. at ¶ 16.

On direct appeal, the appellate court held that defendant could not complain about the court’s refusal to allow his expert witness testimony and that the court had not abused its discretion in allowing the State to present evidence regarding the purchase of drugs, by Whalen, shortly following the murder. The court also held that the trial court did not err by prohibiting defendant from introducing evidence about an additional suspect in the murder. Id. at ¶ 21. The court noted that no evidence linked McElvaney, the other alleged perpetrator, to the crime scene. Id. at ¶ 23.

Whalen then filed a pro se motion (and supplemental amended motions) for DNA testing pursuant to section 116-3 of the Code of Criminal Procedure of 1963, asking for DNA testing to be done on nine blood swabs from various areas of the crime scene, hair found in the victim’s hand and on a nearby table, and bloody knives found at the scene. Id. at ¶ 24. The evidence in question was stored in a box, unsealed, and was determined, by forensic testing experts, to be in a state which would not yield reliable results because contamination was too high. Id. at ¶ 26.

However, after testimony by Dr. Reich,  the defense’s forensic expert, the trial court entered an order finding that Whalen met his burden in establishing a prima facie case for ordering DNA STR testing of the blood samples taken at the crime scene, hair samples, and blood samples taken from the knives found at the crime scene. Id. at ¶ 32. The court denied the request to test the actual knives, for chain of custody reasons. Following multiple amended motions and appeals, the court reversed the trial court’s denial of defendant’s request to have the actual knives tested, holding that “a mixed DNA sample is accepted in the scientific community to reliably reveal the number of contributors to a DNA sample and major versus minor contributors. Further, testing may materially advance defendant’s claim of innocence as defendant raised at trial, through an offer of proof, a specific named individual committed the murder and he was prevented from presenting testimony from an expert witness.” Id. at ¶ 38.

After testing, defendant was excluded as the source of any DNA found on the knives. Id. at ¶ 40. Further, telephone logs of calls between Bloomington police officers and an expert witness, Dierker, revealed the link between Whalen and the partial palm print found on the broken pool cue was “inconclusive as to the victim” and overall, “suspect.” Id. at ¶ 42. In a supplement to his initial section 2-1401 petition, defendant noted that a test was never performed to determine whether the latent palm print on the pool cue was in blood, and thus Dierker’s testimony was without evidentiary or scientific basis. A latent print expert, Michele Triplett, reported that the print could have been left on the pool cue before the murder. Id. at ¶ 46.

In a motion dismiss filed in response to Whalen’s 2-1401 petition, the State argued that parts of the petition relating to the latent print should be dismissed because Dierker’s telephone logs had been provided via discovery in 2007 but were not the subject of a 2-1401 petition until 2017. The State further argued that Triplett’s potential testimony should be stricken from the petition because it was untimely and barred by res judicata principles. Id. at ¶ 27. An evidentiary hearing was held, where Drs. Reich, Dierker and Triplett provided testimony.

The trial court ultimately determined that the State’s case was based almost “entirely on circumstantial evidence and centered around the blood and print evidence,” which the aforementioned experts had reviewed and provided unimpeached testimony on. Id. at ¶ 67. The court further determined that the State’s argument regarding defendant’s motive was also entirely circumstantial. The trial court ultimately found that a potentially unknown assailant was implicated by the DNA evidence on the knives and this evidence, had it been available to defendant at trial, and would have changed the way the defendant’s jury considered the evidence. Id. at ¶ 71.

The court also agreed with Whalen’s arguments related to Dierker’s telephone calls and testimony. In conclusion, the trial court stated: “the likelihood of a different result [at trial] is great enough to undermine the confidence in the outcome of the trial” and as such, allowed the section 2-1401 petition, vacated his convictions and ordered a new trial. Id. at ¶ 75. This appeal followed.

On appeal, the State argued that the claims related to the latent palm print on the pool cue stick were time-barred and should not have been considered and that the order granting the 2-1401 petition was manifestly erroneous and should be reversed outright. Id. at ¶ 79. In the alternative, the State argued the trial court applied the wrong standard, and the appellate court should remand the case to the trial court to reconsider its order under the proper standard.

On the palm print claim, the appellate court noted that the State had conceded that the defense could proceed with the section 2-1401 petition because of the new DNA evidence in the case. Further, the appellate court pointed to the State’s own brief and oral arguments, which posited that the telephone log evidence would be admissible in section 2-1401 litigation. The court found that the DNA tests performed on the knives were the primary basis for the petition as written, thereby rejecting the State’s argument related to the palm print claim being time-barred. Id. at ¶ 83.

As to the trial court’s order granting the 2-1401 petition, the appellate court found this case distinguishable from previous cases that relied upon biological evidence, which would typically justify a ruling like the trial court’s. In fact, Whalen was found guilty without any biological evidence tying him to the murder. Moreover, the court noted the fact that “DNA evidence was not found at the murder scene, on its own, does not establish [defendant] did not commit the crime.” Id. at ¶ 88. Further, the court highlighted that nobody was identified from the DNA testing other than defendant– despite testing revealing mixed samples that, according to Dr. Reich’s testimony, could have resulted from contamination. Id. at ¶ 91.

The appellate court shared Dr. Reich’s befuddlement at the lack of DNA evidence left behind by the assailant, but acknowledged that it was possible that no DNA was left behind. Id. at ¶ 92. The appellate court agreed with the State that, up until the filing of the petition, the defense had seemingly agreed with the inference that the substance on the pool cue was blood, despite a lack of testing of the substance in which the palm print was left. Id. at ¶ 99. Further, the court agreed that the trial court mistakenly equated the standards “probably change the result of retrial” with a “reasonable probability” standard established in precedent. Id. at ¶ 100.

Ultimately, based on the record in this case, the appellate court held it was unclear whether the trial court would have vacated defendant’s conviction and ordered a new trial if the court had not followed the “reasonable probability” standard erroneously and, as a result, the appellate court reversed the trial court’s order vacating the conviction and directed the trial court to determine whether it was “probable” or “more likely than not” a jury would acquit after a new trial. Id. at ¶ 103.

The Appellate Court of Illinois Fourth District ultimately reversed the decision of the Circuit Court of McLean County and remanded for further proceedings.

Defendant’s post-conviction petition properly denied when he sought new counsel on the day of trial

The appellant in People v. White, 2019 IL App (4th) 160793, appealed the trial court’s order dismissing his pro se post-conviction petition, which alleged that trial counsel was ineffective and the trial court violated his right to be represented by counsel of his choice. Ultimately, the Appellate Court of Illinois Fourth District granted a motion filed by the OSAD to withdraw and affirmed the trial court’s judgment.

Ronald White was originally charged and convicted of two counts unlawful delivery of heroin within 1000 feet of a church and sentenced to seven years in prison. Prior to trial, White informed the court of his wish to terminate his public defender and retain private counsel. When questioned by the court regarding that decision, White informed the court, on the day trial was to begin, that his family was attempting to raise money to hire a private attorney. White also stated his displeasure with the representation of his public defender and had filed a complaint with the public defender’s office. Id. at ¶ 6-8. The request for time to hire a private attorney was denied and the case proceeded to a jury trial.

At trial, a confidential information, Curtis Kitchen, testified about an arranged sale between White and himself at a local McDonald’s. Id. at ¶ 12. White was later arrested and blamed the sale on someone else. Id. at ¶ 15. White denied engaging in the sale directly, but did admit to using narcotics with Kitchen in the bathroom during the sale. At the close of evidence, the trial court denied a request by White to instruct the jury of the entrapment defense, and the jury found White guilty. Id. at ¶ 16. White then appealed his conviction, which was affirmed by the appellate court. Id. at ¶ 17.

White filed a pro se post-conviction petition, alleging ineffective assistance of trial counsel and a violation of his right to be represented by counsel of his choice. The petition was dismissed, as the court determined that it was frivolous and patently without merit. Id. at ¶ 19. On appeal, OSAD was appointed to represent appellant. OSAD moved to withdraw as counsel, contending that any appeal in this case would be frivolous. Id. at ¶ 20.

On appeal, White alleged that his post-conviction petition was erroneously dismissed. The OSAD motion noted that it considered whether (1) it was arguable that any procedural error at trial warranted reversal, (2) the post-conviction petition stated an arguable claim of ineffective assistance of counsel, and (3) the post-conviction petition stated an arguable claim that the trial court denied White his right to counsel of his choice at trial. OSAD believed none of the three arguments were viable.

The appellate court concluded that no such procedural errors (as alleged by White) existed and determined that the dismissal within the 90-day period provided by the statute was proper. Id. at ¶ 29-31. The appellate court also concluded that White’s claims regarding the insufficiency of evidence presented by the State did not amount to a claim of ineffective assistance of counsel.

The appellate court also concluded that “although a defendant in a criminal case has a constitutional right to be represented by counsel of his choice, a trial court has the discretion to determine whether a defendant’s right to select counsel unreasonably interferes with the orderly administration of justice.” Id. at ¶ 37. Further, the court stated that “a court does not abuse its discretion by denying a motion to continue to obtain alternative counsel ‘where new counsel is unidentified… especially when a defendant cannot articulate an acceptable reason for desiring new counsel and is already represented by an experienced, court-appointed criminal lawyer.” Id. at ¶ 37. The court determined that because White made no real effort to hire counsel, had neither the money nor contact with alternative counsel, waited until the day of trial to request more time, and failed to provide an acceptable reason for desiring new counsel, the trial court was well within its discretion to deny the motion to continue. Id. at ¶ 39.

The Appellate Court of Illinois Fourth District ultimately agreed with OSAD that none of the above-mentioned claims were arguable, and thus, granted the motion to withdraw and affirmed the judgment of the trial court. Id. at ¶ 59.

 

Court holds that an acquittal does equate to factual innocence

The appellant in People v. Quickle, 2019 IL App (3d) 170281 appealed the trial court’s order denying his motion for leave to file a second successive postconviction petition. Ultimately, the appellate court affirmed the trial court.

Donald Quickle was charged with several counts of murder and armed robbery. Initially, Quickle pled guilty to all counts, but later withdrew his plea. Quickle was then convicted at a jury trial of first degree murder and armed robbery and sentenced to consecutive prison terms of 60 years and 30 years, respectively. Id. at ¶ 7. On direct appeal, the appellate court affirmed both Quickle’s convictions and sentences. Id. at ¶ 8. Shortly thereafter, Quickle filed a pro se post-conviction petition and post-conviction counsel was appointed. Post-conviction counsel filed an amended petition on Quickle’s behalf, alleging ineffective assistance of trial counsel and denial of due process. The State filed a motion to dismiss. The trial court entered an order dismissing the due process claim, based on waiver, but allowed the ineffective assistance of counsel claim to proceed. At the third stage evidentiary hearing, the trial court denied the petition, finding that trial counsel was “not deficient in any respect.” Id. at ¶ 8.

Quickle appealed, arguing that he was denied reasonable assistance of post-conviction counsel. The court agreed and remanded the case to the trial court with directions that new post-conviction counsel be appointed and be allowed to re-plead the due process claim. On remand, an amended petition was filed, and the claim was dismissed (and affirmed by this court) at a third-stage evidentiary hearing. Id. at ¶ 10.

A year later, Quickle filed a motion for leave to file a successive post-conviction petition, alleging that he was denied reasonable assistance of appellate counsel. This was summarily denied, and the appellate court affirmed. Id. at ¶ 11. Quickle then filed a “Petition to Vacate Void Sentences” pursuant to section 2-1401 of the Code of Civil Procedure. Following a motion to dismiss by the State, the petition was dismissed by the trial court. After an additional unsuccessful attempt at filing a petition for relief from judgment, Quickle filed a motion for leave to file his second successive post-conviction petition, alleging his actual innocence of intentional murder under People v. Smith, 233 Ill. 2d 1 (2009). The motion was denied, and this appeal followed. Id. at ¶ 13.

The appellate court noted that under the Post-Conviction Hearing Act, there are two bases upon which the bar against successive proceedings may be relaxed: 1) when a petitioner can establish “cause and prejudice” for failure to raise the claim earlier, and 2) when a petitioner shows “actual innocence,” which is asserted by appellant in this instance. Id. at ¶ 17. In support of an actual innocence claim, evidence must be 1) newly discovered, (2) material and not merely cumulative, and 3) of such conclusive character that it would probably change the result on retrial. Id. at ¶ 18.

The court further explained that “actual innocence” means “total vindication or exoneration” and an “acquittal alone is insufficient to prove actual innocence. Id. at ¶ 19. In Smith, the Illinois Supreme Court held that when a defendant charged with intentional murder, knowing murder, and felony murder is denied his request for separate verdict forms and is found guilty of murder by a general verdict, for purposes of sentencing, the guilty verdict must be interpreted as a finding of guilty on the felony murder charge only. Id. at ¶ 21. Moreover, the supreme court has held that a trial courts’ error in refusing a defendant’s request for separate verdict forms requires that a general guilty verdict of first-degree murder be viewed as “an acquittal on the counts of intentional and knowing murder.”

Quickle argued that he fell within the “actual innocence’ exception for successive post-conviction petitions, contending that, pursuant to Smith and Bailey, the general guilty verdict entered against him must be construed as an acquittal of knowing and intentional murder, making him innocent of those types of murder. Id. at ¶ 22. However, the court determined that Quickle had failed to establish “actual innocence” because, as noted by the court’s review of Smith and Bailey, acquittal alone is insufficient to prove actual innocence. Id. at ¶ 23. The court agreed that the trial court erred by denying his request for separate verdict forms, yet determined that the court’s errors resulted in legal innocence, not factual innocence, of intentional and knowing murder. Id. at ¶ 24. As such, the court affirmed the judgment of the trial court.

Order denying motion for leave to file successive petition was vacated and defendant received new sentencing hearing after receiving de facto life sentence

The appellant in People v. Paige, 2019 IL App (1st) 161563 appealed the trial court’s order denying him leave to file a successive post-conviction petition, arguing that his 50-year prison sentence, imposed for a crime that the defendant committed when he was 16 years old, was unconstitutional. The appellate court reversed the decision of the circuit court and remanded for a new sentencing hearing.

Melvin Paige was charged and convicted of first-degree murder, home invasion, and residential burglary when he was 16 years old. Id. at ¶ 5. Following the commission of these offenses, Paige went to the police station and turned himself in, stating that he “could not sleep because of what he had done” and “wanted to come strong and to stand up for having committed a murder.” Id. at ¶ 11. Paige and his mother were present during a subsequent interview with the ASA, Mary Beth Kinnerk. During the interview with the ASA, appellant stated “substantially the same information as his statement to Sergeant Vargas,” whom he initially confessed to. Id. at ¶ 12. Evidence was presented that Paige was enrolled in a special education program for students with learning disabilities, that his IQ of 78 fell within the borderline range of intellectual potential, and that he suffered from a substance-induced mood disorder with depressive and psychotic features, in addition to a conduct disorder. Id. at ¶ 13.

At sentencing, the State presented victim impact statements from the victim’s son and daughter-in-law, as well as a presentence investigative report (PSI) establishing that Paige had been arrested for a curfew violation when he was 14 years old and completed a year of probation. Id. at ¶ 14. In mitigation, a forensic psychiatrist testified to Paige’s cognitive challenges and his predisposition towards impulsive, poor decision-making. Id. at ¶ 15-16. The psychiatrist also testified as to Paige’s rehabilitative potential and likelihood of success through counseling. Id. at ¶ 16. Paige’s grandmother testified to the effects of the sudden death of Paige’s stepfather, when he was 13 years old, and how that “changed” him. Id. at ¶ 17.

In imposing sentence, the court took into consideration the Paige’s personal circumstances, noting “this has not been an easy case,” and acknowledged the challenges of both Paige and his families’ life. The court considered Paige’s age at the time of the offense and at trial and stated that “defendant’s actions personified really the sum of all fears for homeowners. That is to die at the hands of a home invader.” Id. at ¶ 22. Ultimately, the trial court sentenced Paige to 50 years’ imprisonment for the first-degree murder charge, 25 years for home invasion to be served concurrently, and 15 years for residential burglary, to be served concurrently with the murder sentence but consecutive to the home invasion sentence. Id. at ¶ 23.

The appellate court affirmed the convictions for first degree murder and home invasion but vacated his conviction for residential burglary. Id. at ¶ 24. Shortly thereafter, appellant filed a pro se postconviction petition alleging that the (1) the trial court improperly considered multiple victim impact statements and (2) trial and appellate counsel were ineffective for failing to object and raise this issue. The petition was summarily dismissed by the court. Id. at ¶ 25. Paige filed a subsequent pro se motion for leave to file a successive post-conviction petition, alleging that his 50-year sentence was a de facto life sentence that violated Miller. Id. at ¶ 26. The motion argued for a new sentencing hearing, which the circuit court denied, stating that Paige’s sentence was not a de facto life sentence. This appeal followed.

On appeal, Paige contended that the circuit court erred in denying him leave to file a successive post-conviction petition where he established cause-and-prejudice. After Paige filed his initial post-conviction petition, the United States Supreme Court issued Miller, in which it held that the eighth amendment forbids a mandatory sentence of life in prison for juvenile offenders whose crimes reflect “unfortunate yet transient immaturity.” Id. at ¶ 30. Paige argued that he had shown cause-and-prejudice where cases decided after his initial petition found such sentences unconstitutional.

The appellate court agreed that Paige had established “cause” based on the timeline of his filing. To establish prejudice, the court held that appellant must have demonstrated a violation of Miller’s substantive rule in the imposition of his sentence. Id. at ¶ 31. The court acknowledged that while Paige’s sentence was not mandatory, the Illinois supreme court held that Miller also applies to discretionary sentences, and recently, in People v. Buffer, 2019 IL 122327, determined that sentences in excess of 40 years constitute de facto life sentences. Id. at ¶ 31. Therefore, the court held that Paige’s sentence of 50 years’ imprisonment for an offense committed as a 16-year-old was a de facto life sentence subject to Miller’s substantive rule.

In order to prevail on his Miller claim, the court stated that Paige was required to demonstrate that the sentencing court’s failed to consider his youth and its attendant characteristics before imposing his sentence. Id. at ¶ 32. The court noted that the record reflected evidence was presented on the potential for Paige’s rehabilitation, which included testimony on the rehabilitative potential, via counseling and drug treatment, for both Paige’s drug abuse problem and personality disorder. Id. at ¶ 39. The appellate court also noted that the trial court failed to “fully consider [Paige’s] potential for rehabilitation” in sentencing. As such, the court held that the “imposition of a life sentence on a juvenile defendant was unconstitutional.” Id. at ¶ 40. The sentence was vacated by the court and remanded to determine whether his crime reflected “permanent incorrigibility” or the “unfortunate yet transient immaturity” of youth.

The Appellate Court of Illinois First District reversed the judgement of the Circuit Court of Cook County and remanded for a new sentencing hearing.

Petitioner’s motion for leave to file successive petition was properly denied where petitioner did not show that his involuntarily intoxication defense would have prevailed at trial

The appellant in People v. Taliani, 2020 IL App (3rd) 170546, appealed the decision of the trial court denying his motion for leave to file a second successive post-conviction petition, arguing on appeal that he set forth a colorable claim of actual innocence based on the affirmative defense of involuntary intoxication. The appellate court disagreed and affirmed.

Steven Taliani was charged and convicted of first-degree murder and aggravated battery with a firearm. At his jury trial, Taliani relied on an insanity defense supported by forensic psychiatrist testimony that he had a major affective disorder, or depression with suicide ideation, and obsessive-compulsive disorder. Id. at ¶ 3-5. The psychiatrist further testified that appellant’s depression “severely impacted his ability to appreciate the criminality of his conduct” and that his victim–his girlfriend–had encouraged his homicidal and suicidal ideations Id. at ¶ 5.

The jury found Taliani guilty on both charges, and the court sentenced him to consecutive terms of 70 years imprisonment for the first-degree murder conviction and 30 years’ imprisonment for the aggravated battery conviction. Id. at ¶ 6. The conviction and sentence were affirmed on direct appeal. Id. at ¶ 8. Taliani then filed a pro se post-conviction petition raising several claims of ineffective assistance of counsel, which was summarily dismissed by the trial court and affirmed by the appellate court. Id. at ¶ 9.

Taliani then filed a pro se petition for relief from judgement pursuant to section 2-1401 of the Code of Civil Procedure, which was denied and affirmed by the same courts. Id. at ¶ 10. Another pro se petition for relief from judgement was filed and then re-characterized as a successive post-conviction petition. Counsel was appointed, who filed an amended petition and raised several claims. This petition was dismissed, as it failed to establish cause-and-prejudice. The appellate court affirmed this dismissal. Id. at ¶ 11.

Fifteen years later, Taliani filed a motion for leave to file a second successive post-conviction petition that was the subject of this appeal. The petition raised a claim of actual innocence based on the affirmative defense of involuntary intoxication from the unwarned side effects of prescription medications that he was taking at the time of the offense. Id. at ¶ 12. Taliani alleged that the defense was not available until the supreme court issued its decision in People v. Hari, 218 Ill. 2d 275 (2006), which was decided ten years after his trial.

The motion alleged that Taliani’s physician had failed to warn him that Buspar and Desyrel, medications appellant was taking at the time of offense, could combine to cause serotonin syndrome if taken together. The motion alleged that Taliani was suffering from such a syndrome at the time of offense, resulting in suicidal ideations, heightened irritability, and altered consciousness. Id. at ¶ 13. The motion further alleged that this syndrome was a contributing factor in the diagnoses and testimony presented at trial. Reports indicating the potential for serotonin syndrome in users of both medications, appellant’s diagnoses depression, and appellant’s suicidal ideations while incarcerated were attached to the motion. Id. at ¶ 14-19. The circuit court denied the motion. This appeal followed.

In reviewing the arguments made by Taliani, the appellate court noted that in Hari, the scope of the defense of involuntary intoxication was broadened beyond the plain language of the statute and is not an application of existing precedent on such defense. Id. at ¶ 24. Further, the courts have since held that the new rule should be given the full retroactive effect because it is tantamount to a rule that limits the conduct prescribed by the criminal statute.

Taliani contended that the evidence in support of his involuntary intoxication defense should be considered “newly discovered” due to the change in the law, despite the fact that it was known at the time of his trial that he was taking the medications. Id. at ¶ 25. The court found that, even considering the evidence in support of appellant’s claim, the circuit court did not err in denying the motion for leave. Id. at ¶ 25.

The appellate court noted that leave of court should only be granted when the petitioner’s supporting documentation raises the probability that it is more likely than not that no reasonable juror would have convicted the petitioner in light of such evidence. Id. at ¶ 26. The court held the supporting documents failed to demonstrate that Taliani was intoxicated to such a degree so as to lack substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law. Id. at ¶ 28. Specifically, while acknowledging the potential for Taliani to have been suffering from serotonin syndrome, the court noted that “it is not apparent that increased thoughts of suicide would deprive [appellant] of the capacity to appreciate the criminality of shooting victims.” Id. at ¶ 29.

The Third District Appellate Court affirmed.

Appellate counsel was not ineffective for failing to pursue appeal when defendant was fugitive

The defendant in People v. Parada, 2019 IL App (1st) 161987, appealed the decision of the trial court dismissing his petition for relief under the Post-Conviction Hearing Act at the second stage of proceedings, arguing on appeal that he made a substantial showing that he was denied his right to effective assistance of appellate counsel where appellate counsel failed to file a docketing statement, a record on appeal, and an appellate brief, resulting in the dismissal of the appeal. Ultimately, because the appeal was pending while appellant was a fugitive, and the appellate court dismissed the appeal through no fault of counsel, the court affirmed the judgment of the circuit court.

Hector Parada was arrested, charged, and convicted in absentia of possession with intent to deliver more than 900 grams of cocaine and sentenced to 60 years’ imprisonment. Id. at ¶ 3-5. Shortly thereafter, defense counsel filed a notice of appeal and indicated in the notice that defendant remained a fugitive. Id. at ¶ 6. The reviewing court dismissed the appeal eight months following the filing of the notice. In its decision, the court stated, “as no docketing statement, no record on appeal, and no brief have been filed, the Appellant’s appeal is dismissed for want of prosecution.” Id. at ¶ 6.

Parada was eventually extradited to Illinois, where he filed a motion to reinstate his appeal; the reviewing court denied the motion and Parada did not appeal that ruling. Id. at ¶ 7. Parada then filed a pro se post-conviction petition alleging that counsel was ineffective for abandoning the appeal, claiming, among other things, that he had instructed counsel not to abandon the appeal.

The petition was advanced to the second stage of proceedings, where a public defender was appointed to represent Parada. While the petition was pending, Parada unsuccessfully filed a motion for a supervisory order with the Illinois Supreme Court requesting it direct the appellate court to reinstate his appeal. Appointed counsel then filed an amended postconviction petition with additional exhibits. The amended petition maintained that appellate counsel’s failure to avoid a dismissal for want of prosecution fell below the reasonable standard of competence of counsel and that prejudice may be presumed in this instance. Appellant attested, in an affidavit, that counsel had agreed to represent him during his appeal, and he believed counsel was doing so. Id. at ¶ 10. The State filed a motion to dismiss, arguing that since petitioner was a fugitive at the time his appeal was dismissed, he forfeited all of his claims. The circuit court dismissed the petition. This appeal followed.

On appeal, Parada argued that his petition demonstrated a substantial showing of a constitutional violation where his appellate counsel was ineffective for failing to pursue the appeal. Id. at ¶ 14. The court conducted its review de novo.

The appellate court held that while “there is no question that appellate counsel failed to perfect the appeal,” “petitioner was a fugitive at the time his appeal was filed and… it is well established that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal.” Id. at ¶ 24. The rule, known as the “fugitive dismissal rule,” was first applied by the Supreme Court in Smith v. United States, 94 U.S. 97 (1876). The court has since held that the rule applies to both federal and state courts. Id. at ¶ 24.

As such, the court held that in order to establish prejudice, petitioner must make a substantial showing that counsel’s failure to perfect the appeal actually caused the forfeiture of the appeal. Id. at ¶ 26. The appellate court found that Parada failed to make such a substantial showing “where his voluntary status as a fugitive caused the dismissal of the appeal.” Id. at ¶ 26. Further, the court held that the denial of Parada’s motion to reinstate his appeal (as permitted by the court) was within the reviewing court’s discretion and had nothing to do with appellate counsel’s failure to file a docketing statement, record, and brief on behalf of defendant. Id. at ¶ 26.

The court noted that it viewed the trial court’s reference to the failings of appellate counsel not as indication of its reasoning for dismissal, but rather as an “additional reason for the court to exercise its discretion to dismiss the appeal” under the fugitive dismissal rule. Id. at ¶ 27. The court reiterated that the appeal was dismissed absent prejudice, and thus, did not foreclose him from the opportunity for appellate review. Further, the court stated that Parada’s fugitive status was entirely within his own control, and had he promptly availed himself of the court, it is possible that the motion to reinstate the appeal would have been granted. Id. at ¶ 31.

Ultimately, the court concluded that the trial court did not err in dismissing Parada’s post-conviction petition at the second stage because Parada could not demonstrate that appellate counsel’s alleged ineffective assistance was the cause of the dismissal of his appeal (and thus he could not make the requisite substantial showing of a constitutional violation). Id. at ¶ 34.

Appellate Court holds that petitioner’s 27-year sentence is not de facto life sentence

The appellant in People v. Johnson, 2019 IL App (2d) 170646, appealed the decision of the trial court denying his motion for leave to file a successive post-conviction petition. The Second District ultimately affirmed the judgment of the trial court.

Derron Johnson was found guilty of first degree murder, based on the theory that he was accountable for the conduct of another individual, Andrew Proctor, who committed the acts resulting in the victim’s death. Johnson was subsequently sentenced to 27 years’ imprisonment. On direct appeal, the appellate court affirmed the conviction and sentence. Id. at ¶ 3.

Johnson filed a pro se petition for post-conviction relief, followed by an amended petition six years later. The court dismissed the petition and the appellate court affirmed the dismissal. Johnson then filed a motion for leave to file a successive postconviction petition. Johnson argued that, considering his age at the time of the offense and his level of participation, his 27-year sentence violated the eighth amendment’s ban on cruel and unusual punishment and the Illinois Constitution’s proportionate penalties clause. Id. at ¶ 4.

In support, Johnson cited Miller v. Alabama, 567 U.S. 460 (2012), which held that sentencing a juvenile offender to mandatory life imprisonment without parole violated the eighth amendment. Johnson also raised an ineffective assistance of counsel claim for counsel’s failure to raise this issue in his first post-conviction petition. The trial court denied the motion for leave and determined that Johnson failed to show cause for not raising his Miller claim earlier when his amended petition was filed. The court also determined that Johnson failed to show prejudice, as Miller did not apply to his 27-year sentence, which was not a de facto life sentence. Id. at ¶ 5. This appeal followed.

On appeal, Johnson raised a new argument – that the truth-in-sentencing statute requiring him to serve his entire sentence without the possibility of parole violated the eighth amendment’s ban on cruel and unusual punishment and the Illinois Constitution’s proportionate penalties clause. Id. at ¶ 7. Johnson argued that this provision of the Code was unconstitutional both facially and as applied. As to cause-and-prejudice, Johnson argued that he established cause because the new claim is a novel claim that was not available to him at the time of original filing and that he demonstrated prejudice because Miller applies retroactively.

The State argued, in response, that Johnson waived his challenge to the constitutionality of his sentence because, at sentencing, trial counsel acknowledged the legislatively imposed sentencing requirements and stated that he was “not arguing about [that].” Id. at ¶ 9. The State also asserted that the Johnson forfeited his argument by not raising the constitutionality of the truth-in-sentencing statute in his motion for leave to file a successive post-conviction petition. The court found these arguments presented by the state to be without merit. Id. at ¶ 9. The court declined to find the issues waived or forfeited and addressed the merits of the claims on appeal.

The Appellate Court found that courts have held that the truth-in-sentencing statute can be constitutionally applied under some circumstances, and thus, it was not facially unconstitutional. The as-applied challenge is premised on the decision in Miller, in which the Supreme Court held that, for those convicted of homicide, the eighth amendment prohibits a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders. Id. at ¶ 11.

The Johnson court noted that numerous courts have rejected similar arguments as Johnson’s. Id. at ¶ 12. The court held “the 27-year sentence was not a de facto life sentence” and does not fall under the protections of Miller. Id. at ¶ 13. Further, the court found that, in accordance with Miller, the trial court had properly considered age, circumstances of family life growing up, appellant’s lack of criminal history, and Johnson’s culpability at sentencing. Id. at ¶ 14. As such, even if the court had held that Miller were applicable to Johnson’s case, no violation of Miller occurred.

 

 

Appellate Court holds that State cannot participate in motion to reconsider denial motion for leave to file successive petition

The appellant in People v. Coffey, 2020 IL App (3d) 160427, appealed the trial court’s order denying his motion for leave to file a successive post-conviction petition, arguing on appeal that the trial court erred in permitting the State to participate in the proceedings on the motion to reconsider the denial of his motion for leave. The Third District ultimately vacated the decision of the circuit court and remanded for new proceedings for the trial court to consider the motion for leave without participation from the State.

Coffey was convicted at a bench trial of first-degree murder and sentenced to 60 years’ imprisonment. On direct appeal, the appellate court affirmed the conviction and sentence. Id. at ¶ 3. Coffey then filed a pro se post-conviction petition, which he subsequently amended several times. The petition advanced to the second stage of post-conviction proceedings, where the State filed, and the court granted, a motion to dismiss. The court then denied Coffey’s requests for leave to file successive post-conviction petitions on three occasions. Id. at ¶ 4. In his fourth attempt, which is the subject of this appeal, Coffey raised several claims relating to the court’s failure to order a fitness examination prior to his trial. Coffey claimed he was mentally ill and not taking his medication, which created a bona fide doubt as to his fitness. Id. at ¶ 5. The trial court determined that Coffey had failed to satisfy the cause-and-prejudice test and denied the motion for leave to file a successive petition. Id. at ¶ 6.

Coffey then filed a motion to reconsider. A hearing was held on the motion reconsider, at which the State to asked the court to deny the motion to reconsider. Id. at ¶ 9. The State argued there that Coffey did not raise any new issues and had not argued that there was a mistake of fact in the court’s earlier ruling on the motion for leave to file a successive petition. Shortly thereafter, the court denied the motion to reconsider. Id. at ¶ 10.

On appeal, the Office of the State Appellate Defender (OSAD) was appointed to represent appellant. OSAD filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), claiming that there were no meritorious issues to be raised on appeal. Id. at ¶ 11. The appellate court denied the motion to withdraw and ordered the parties to brief the issue of whether the circuit court erred in allowing the State to participate in the proceedings on appellant’s motion to reconsider and the applicability, if any, of the holding in People v. Bailey, 2017 IL 121450, People v. Munson, 2018 IL App (3d) 150544, and People v. Baller, 2018 IL App (3d) 160165, to this case. Id. at ¶ 12.

The Appellate Court ultimately accepted the argument made by Coffey that “the circuit court erred in allowing the State to participate in the proceedings on the motion to reconsider the denial of [his] motion for leave to file a fourth successive postconviction petition.” Id. at ¶ 14. In support, the court looked to the Illinois Supreme Court’s decision in Bailey, 2017 IL 121450, which held that it was “premature and improper for the State to provide input to the court before the court has granted a defendant’s motion for leave to file a successive petition.” Id. at ¶ 16. While in this case the State did not participate in the initial proceedings on the motion for leave, the State did participate at the hearing on Coffey’s motion to reconsider. The Appellate Court held that Bailey applied with equal force to the motion to reconsider hearing. Id. at ¶ 18. As such, the court held the State’s participation was premature and improper.

In considering the appropriate remedy for the State’s improper participation, the court acknowledged, pursuant to Bailey, that the court may independently review the circuit court’s cause-and-prejudice determination, however, it chose to remand for an independent determination by the circuit court. Id. at ¶ 27. As a result, the judgment of the trial court was vacated, and the cause was remanded for new proceedings on the motion for leave to file a successive post-conviction petition without participation from the State. Id. at ¶ 30.

Order denying post-conviction petition reversed where trial counsel promised in opening statement that defendant would testify and then advised defendant not to testify during trial

The appellant in People v. Gunn, 2019 IL App (4th) 170653, appealed the trial court’s order dismissing his amended post-conviction petition at the second-stage of proceedings, arguing that the petition made a substantial showing of a constitutional violation. Ultimately, the Appellate Court of Illinois Fourth District reversed the decision of the circuit court and remanded for a third-stage evidentiary hearing.

Kendall Gunn was charged by indictment with three counts of first-degree murder for causing the death of Shane Howard. At trial, both the State and defense presented evidence and elicited witness testimony indicating that Gunn may have acted in self-defense, or imperfect self-defense, when taking the life of Shane Howard. Id. at ¶ 2-11. However, in closing, the State published to the jury portions of the audio and video recordings of Gunn’s police interview and argued that Gunn had no reasonable fear for his own life and thus could not have acted in self-defense. Id. at ¶ 12. The State also noted Gunn’s dishonesty during the interview regarding where he discarded the knife.

Following closing arguments, the court instructed the jury that (1) “neither opening statements nor closing arguments are evidence, and any statement or argument made by the attorneys which is not based on evidence should be disregarded” and (2) “the fact that the defendant did not testify must not be considered in any way in arriving at a verdict.” Id. at ¶ 13. Following deliberations, the jury found Gunn guilt of first-degree murder, resulting in a 35-year sentence from the trial court. Id. at ¶ 14. On direct appeal, the appellate court affirmed Gunn’s conviction and sentence.

Gunn then filed a pro se post-conviction petition, which advanced to the second stage of proceedings. Appointed post-conviction counsel supplemented the petition, and the State filed a motion to dismiss, which was eventually granted by the trial court following a hearing. Id. at ¶ 16. Shortly thereafter, Gunn appealed the dismissal of the petition, arguing on appeal that he was denied reasonable assistance of post-conviction counsel. The appellate court reversed and remanded for new second-stage proceedings. Id. at ¶ 17.

Newly appointed post-conviction counsel filed an amended post-conviction petition on Gunn’s behalf, which argued, in part, that trial counsel was ineffective for “objecting to the reading of the fourth Zehr principle on the basis that [Gunn] would testify and for telling the jurors the petitioner was going to tell them certain things throughout the trial, when in fact he did not tell them anything because he never testified.” Id. at ¶ 18. The petition alleged that counsel’s failures met both prongs of the Strickland test and further alleged that appellate counsel was ineffective for failing to raise these claims on appeal from the conviction and sentence. Id. at ¶ 18.

Post-conviction counsel attached an affidavit from Gunn, which averred, in part, that Gunn fully intended to testify at trial, up until the last day of the trial, when counsel instructed him it would not be necessary, as she believed they’d presented enough evidence to avoid a conviction. The State filed a motion to dismiss in response, arguing that trial counsel’s advice not to testify should be regarded as a shift in trial strategy and did not rise to the level of unreasonableness and that the petition establish prejudice. Id. at ¶ 20. The trial court dismissed the petition, finding that Gunn failed to make a substantial showing of a constitutional violation. This appeal followed.

On appeal, Gunn argued that the appellate court should reverse the trial court’s judgment because his amended post-conviction petition made a substantial showing of a constitutional violation with the ineffective assistance of counsel claims presented. Gunn requested that the matter be remanded for a third-stage evidentiary hearing concerning the factual question of whether counsel’s actions constituted a valid trial strategy. Id. at ¶ 24.

The appellate court noted that “to determine whether the failure to provide promised testimony amounts to ineffective assistance of counsel, we must look to the factual circumstances of a given case.” In that regard, the court acknowledged that the record reflected both Gunn and his counsel anticipating providing testimony up until the last day of the trial. The court held that trial counsel, therefore, waived Gunn’s right to have the trial court ask prospective jurors whether they understood and accepted the fourth Zehr principle and promised the jury that Gunn would testify and explain why he lied to the police, that he wasn’t in a gang, and that he stabbed Howard in self-defense. Id. at ¶ 30. The court noted that this decision could not be regarded as a situation where a defendant who expressed a pre-trial desire to testify simply changed his mind, but, instead, is a situation where trial counsel changed strategy mid-trial and advised Gunn that his testimony was not necessary, which Gunn relied on when electing not to testify. Id. at ¶ 31.

The court rejected both the State’s argument that trial counsel’s decision to change course was a result of sound trial strategy and its assertion that the decision was not objectively unreasonable (based on counsel’s own stated rationale that the jury had heard “enough” not to convict). Id. at ¶ 33-34. The court held that but for an unforeseeable event, the failure to present promised testimony may be unreasonable, for “little is more damaging than to fail to produce important evidence that had been promised in opening.” Id. at ¶ 34. Counsel failed to provide any explanation at trial to suggest that an unforeseeable event occurred to justify the change in strategy, and thus the court held that Gunn made a substantial showing that counsel’s decision was constitutionally inadequate.

On the prejudice prong of Strickland, the court rejected the State’s arguments that Gunn’s testimony would have been entirely cumulative and that jury instructions cured any prejudice suffered by Gunn. Id. at ¶ 35-36. The court concluded that “given the specific promises made by counsel and the fact the evidence of guilt was not overwhelming, we find [appellant] made a substantial showing he was prejudiced by counsel’s decision to change course and advise him his testimony was not necessary.” Id. at ¶ 37.

The Appellate Court of Illinois Fourth District reversed the decision of the Circuit Court of McLean County and remanded for a third-stage evidentiary hearing.

 

Appellate Court reverses order denying post-conviction petition because pro se petitioner was shackled during second-stage proceedings

The appellant in People v. Hawkins, 2019 IL App (3d) 160682, appealed the trial court’s order dismissing his pro se post-conviction petition at the second stage on the grounds that the court erred by ordering that he be shackled without stating the reasons for doing so and that post-conviction counsel failed to comply with Illinois Supreme Court Rule 651(c). The Appellate Court of Illinois Third District ultimately vacated the circuit court’s order and remanded for new second-stage proceedings, beginning with the appointment of new post-conviction counsel.

Anthony Hawkins was convicted of first-degree murder and aggravated unlawful use of a weapon (AUUW) and sentenced to terms of 45 years’ and 2 years’ imprisonment, respectively. Id. at ¶ 4. On direct appeal, both convictions and sentences were affirmed. Shortly thereafter, Hawkins filed a pro se post-conviction petition alleging that appellate counsel had been ineffective for failing to argue on direct appeal that the circuit court had erred by denying his motion to suppress. Hawkins also asserted that his conviction for AUUW was unconstitutional. Id. at ¶ 5.

The court appointed post-conviction counsel and advanced the petition to the second stage of postconviction proceedings. Counsel filed a petition for relief from judgment, alleging the AUUW conviction should be vacated under People v. Aguilar, 2013 IL 112116. Id. at ¶ 6. The court granted the petition and vacated the conviction. Following a conclusion that no nonfrivolous arguments remained to be made on appellant’s behalf, counsel filed a motion to withdraw. The circuit court found that counsel had complied with the requirements of Rule 651(c) and granted the motion. Id. at ¶ 7.

The State then subsequently filed a motion to dismiss the postconviction petition. Hawkins filed a response, pro se, and, at the hearing, repeatedly requested that he be unshackled so that he could maneuver through his notes and other paperwork. The court refused all requests and said, at one point, “I’m not removing them… do the best you can do.” Id. at ¶ 8. The record did not provide any rationale for keeping Hawkins shackled nor did it contain any notation of the factors considered by the court in denying Hawkins’ requests to be unshackled. The court granted the State’s motion to dismiss. This appeal followed.

On appeal, Hawkins raised two arguments. First, he argued that the court’s decision to keep him shackled during the second-stage hearing, absent any articulated justification by the court on the record, requires a new second-stage hearing. Further, he argued that he was entitled to a new second-stage hearing due to post-conviction counsel’s failure to file a Rule 651(c) certificate before withdrawing from the case. Id. at ¶ 10.

The court acknowledged that it is “well accepted” that in-court shackling has the potential to restrict an individual’s ability to assist defense counsel, and a trial judge’s failure to articulate any basis for the shackling constitutes a violation of due process. Id. at ¶ 11. The court looked to People v. Rippatoe for similar instruction on pro se proceedings and found that the aforementioned requirements from Boose applied similarly to pro se cases.

The State acknowledged that the shackling documented in this record was “inappropriate” under the Boose standard. Id. at ¶ 12. The point of dispute between the two parties focused on the proper remedy for the Boose violation. The State argued that the court should remand the matter for a retrospective hearing to determine if shackling was proper, while Hawkins argued for the vacation of the order dismissing his post-conviction petition and remand for a new second-stage hearing. Id. at ¶ 13. The appellate court agreed with Hawkins that a retrospective hearing would be improper, and, due to the trial court’s silence on its precise rationale for shackling, vacated the order dismissing the post-conviction petition and remanded for new second stage proceedings. Id. at ¶ 15.

The appellate court then turned to the second issue raised on appeal: that post-conviction counsel had not filed a valid Rule 651(c) certificate before being allowed to withdraw from second stage proceedings. All parties agreed that no valid certificate was filed. The appellate court, similarly, instituted the same remedy for the first issue and remanded for new second stage proceedings. Id. at ¶ 16. The court provided instruction to the trial court to begin the second stage post-conviction proceedings anew with the re-appointment of post-conviction counsel, allowing counsel to review the entire record in compliance with Rule 651(c). Id. at ¶ 18.

The Third District vacated the judgement of the Circuit Court of Will County and remanded with new directions.