Opinion
4-22-0864
07-27-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SETH A. DRYER, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Boone County No. 15CF246 Honorable C. Robert Tobin III, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court. Justices Cavanagh and Knecht concurred in the judgment.
ORDER
HARRIS JUSTICE.
¶ 1 Held: The trial court erred by summarily dismissing defendant's pro se postconviction petition.
¶ 2 Defendant, Seth A. Dryer, appeals the trial court's first-stage dismissal of his pro se postconviction petition. He contends his petition set forth the gist of constitutional claims that both his trial and appellate counsel provided ineffective assistance. The State concedes that the court erred by dismissing defendant's petition. We accept the State's concession, reverse the court's dismissal of defendant's petition, and remand for further postconviction proceedings.
¶ 3 I. BACKGROUND
¶ 4 In November 2015, a grand jury indicted defendant on two counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2014)), two counts of sexual exploitation of a child (id. § 11-9.1(a-5)), eight counts of indecent solicitation of a child (id. §§ 11-6(a), (a-5)), and one count of aggravated criminal sexual abuse (id. § 11-1.60(d)). In August 2017, a superseding indictment was filed, adding seven counts of "aggravated child pornography" (id. §§ 11-20.1(a)(1)(i), (a)(1)(iii), (a)(1)(iv), (a)(3), (a)(4)). The charges were based on allegations that defendant, who resided in Texas, communicated over the Internet-via Xbox 360 gaming systems and using the gamertag "My Name is K1 ll'-with two Illinois minors-C.H. and W.M.- and convinced them to engage in sexual activities that were observable by defendant through a camera attached to C.H.'s gaming console.
¶ 5 Prior to trial, the State moved for the admission of hearsay statements C.H. made in July 2015, during two recorded interviews at a children's advocacy center. The trial court conducted a hearing in the matter, and recordings of the interviews were admitted into evidence for the court's consideration. During the initial interview on July 14, 2015, C.H. acknowledged communicating via his Xbox with an individual he believed to be an adult and who used the name "My Name is K1 ll." However, he denied knowing where that individual lived or that any of the alleged sexual activities had occurred. During the second interview on July 21, 2015, C.H. reported that he had not told the truth during his first interview because he was embarrassed and thought he might get in trouble for telling the truth. He also stated he was afraid of "My Name is K1 ll." C.H. provided various details regarding the sexual activities that "My Name is K1 ll' asked him to perform. He further reported that "My Name is K1 ll' asserted he lived "far from Illinois," but C.H. denied being told "what state."
¶ 6 The trial court ultimately granted the State's motion, finding C.H.'s recorded statements were admissible at trial. However, the State later withdrew its request after it elected not to go forward with some of the charges against defendant. Both the court and the parties acknowledged that although the recordings would not be used as substantive evidence, they could be used for impeachment purposes.
¶ 7 At defendant's jury trial in November 2018, the State proceeded on only the sexual exploitation and child pornography counts. C.H. testified that in 2014 or 2015, he began communicating online via his Xbox 360 gaming console with an individual who used the gamertag, "My Name is K1 ll." C.H. referred to that individual as "Kill" and indicated the two spoke frequently, playing online games and engaging in video chats through cameras connected to their gaming consoles. Although C.H. was able to hear Kill's voice during the chats, he was never able to see Kill's face. He described Kill as having a male voice. C.H. also testified that he asked Kill where he lived and Kill replied that he lived in Texas.
¶ 8 Evidence showed that on July 9, 2015, when C.H. was 10 years old, Kill convinced C.H. and his friend, 10-year-old W.M, to engage in various sexual activities in view of C.H.'s Xbox camera. Kill communicated with the minors while they engaged in those activities and directed them regarding what to do and how to position themselves. The incident was captured on a nanny cam that C.H.'s mother had placed in his bedroom. After reviewing the nanny cam footage, C.H.'s mother contacted the police. Investigators contacted Microsoft and learned of a Texas address associated with the "My Name is K1 ll' gamertag. Evidence showed defendant, who was then 34 years old, resided at the address with his mother.
¶ 9 During the execution of a search warrant at the Texas residence, law enforcement officers discovered an Xbox 360 gaming system in defendant's bedroom. Detective David Bird testified he spoke with defendant and defendant admitted the Xbox belonged to him and he was the only one who played it. Although defendant initially asserted that he could not remember his gamertag, he ultimately "confirmed that My Name is Kill [was] his Xbox Live gamertag." Bird also testified that upon hearing defendant speak, he recognized defendant's voice as being the same as the person who left audio messages on C.H.'s Xbox Live account under the gamertag "My Name is K1 ll' and also as the male voice that could be heard at times on the nanny cam footage. The audio messages from C.H.'s Xbox Live account and portions of the nanny cam video were admitted into evidence and played for the jury.
¶ 10 The jury found defendant guilty on all counts and, in January 2019, the trial court sentenced him to an aggregate term of 52 years in prison. Defendant filed a direct appeal, arguing (1) he was denied his right to a speedy trial with respect to the child pornography charges and (2) his trial counsel was ineffective for failing to move for the dismissal of the child pornography charges on speedy trial grounds. People v. Dryer, 2021 IL App (2d) 190187, ¶ 15, 173 N.E.3d 261. The Second District affirmed the trial court's judgment, finding defendant's right to a speedy trial had not been violated. Id. ¶¶ 36, 38. In setting forth its opinion, the reviewing court noted that during the underlying proceedings, the trial court and the parties mistakenly classified defendant's conduct as "aggravated" child pornography and that they had also relied on incorrect statutory citations for several of those charges. The court pointed out that the aggravated child pornography statute was repealed on January 1, 2013, and it identified the correct classification for the charged conduct as "child pornography" along with the correct statutory citations (see 720 ILCS 5/11-20.1(a)(1)(i), (a)(1)(iii), (a)(1)(iv), (a)(3), (a)(4) (West 2014)).
¶ 11 In June 2022, defendant filed a pro se postconviction petition. Relevant to this appeal, he alleged his trial counsel provided ineffective assistance "by failing to impeach C.H." According to defendant, C.H. testified at trial "that Kill told [C.H.] he lived in Texas." He asserted, however, that during previous recorded interviews, C.H. "claimed *** that Kill lived far away." Defendant maintained the jury should have been shown the recorded interviews and he "was denied a fair trial." He further asserted that his appellate counsel was ineffective for not raising the issue on direct appeal.
¶ 12 In his pro se petition, defendant also alleged that he was "denied his right to *** effective trial counsel" because the jury was presented with jury verdict forms for the offense of "aggravated child pornography." He asserted that offense did not exist and the State and the trial court "lacked the authority to indict, try, convict[,] or sentence him." Again, defendant further alleged that his appellate counsel was ineffective for failing to raise the issue on direct appeal.
¶ 13 In August 2022, the trial court summarily dismissed defendant's pro se petition. In connection with defendant's claim that his trial counsel was ineffective for failing to impeach C.H. with a prior inconsistent statement, the court stated as follows:
"The Court does not need to rule on whether the petitioner's allegations were sufficient to plead deficient performance, because the allegations were wholly insufficient to establish prejudice. There were insufficient allegations to show that an impeachment by the defense attorney of that witness would have changed the result of the trial."
¶ 14 Regarding defendant's claim that his trial counsel was ineffective for failing to object to the improper classification of his offenses as "aggravated" child pornography, the trial court noted that, beginning January 1, 2013, the offense of aggravated child pornography was "folded into" the child pornography statute in section 11-20.1 of the Criminal Code of 2012 (id.). It stated that although the name and citation of the offense changed, "[t]here was no change to the elements of the offense." The court found that in his pro se petition, defendant failed to "state how exactly he was affected by the incorrect citation."
¶ 15 This appeal followed.
¶ 16 II. ANALYSIS
¶ 17 On appeal, defendant contends his pro se postconviction petition should not have been summarily dismissed because it stated the gist of constitutional claims that his trial counsel was ineffective for failing to (1) impeach C.H., the State's key witness, with a prior inconsistent statement and (2) "prevent the use of improper verdict forms that listed a crime which did not exist at the time of his offense." Defendant also argues that he presented the gist of a constitutional claim that his appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness as to both of the above issues on direct appeal. While not conceding the underlying merits of defendant's claims, the State does concede that defendant's pro se petition set forth at least arguable claims of ineffective assistance and, as a result, the trial court erred by summarily dismissing his petition.
¶ 18 Under the Post-Conviction Hearing Act (Act), there is "a three-stage process for an imprisoned person to raise a constitutional challenge to a conviction or sentence." People v. Hatter, 2021 IL 125981, ¶ 22, 183 N.E.3d 136 (citing 725 ILCS 5/122-1 et seq. (West 2016)). "At the first stage, the circuit court reviews the petition independently within 90 days after it is filed and docketed." Id. The threshold for surviving a first-stage summary dismissal is low, and a petition should only be summarily dismissed "if it is 'frivolous or is patently without merit.'" Id. ¶ 23 (quoting 725 ILCS 5/122-2.1(a)(2) (West 2016)).
¶ 19 "A postconviction petition is frivolous or patently without merit if it has no arguable basis either in law or in fact." (Internal quotation marks omitted.) Id. "A petition which lacks an arguable basis either in law or in fact is one which is based on an indisputably meritless legal theory or a fanciful factual allegation." People v. Hodges, 234 Ill.2d 1, 16, 912 N.E.2d 1204, 1212 (2009). "An example of an indisputably meritless legal theory is one which is completely contradicted by the record." Id. "Fanciful factual allegations include those which are fantastic or delusional." Id. at 17.
¶ 20 "The allegations of the petition, taken as true and liberally construed, must present the gist of a constitutional claim." Hatter, 2021 IL 125981, ¶ 24. "[B]y definition, a 'gist' of a claim is something less than a completely pled or fully stated claim." People v. Edwards, 197 Ill.2d 239, 245, 757 N.E.2d 442, 446 (2001). "To set forth the 'gist' of a constitutional claim, the post-conviction petition need only present a limited amount of detail [citation] and hence need not set forth the claim in its entirety." (Internal quotations marks omitted.) Id. at 244. It also "need not present formal legal arguments or citations to legal authority." Hatter, 2021 IL 125981, ¶ 24. The summary dismissal of a postconviction petition is subject to de novo review. Id.
¶ 21 Additionally, ineffective-assistance-of-counsel claims are governed by the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Hodges, 234 Ill.2d at 17. Under Strickland, "a defendant must show both that counsel's performance 'fell below an objective standard of reasonableness' and that the deficient performance prejudiced the defense." Id. (quoting Strickland, 466 U.S. at 687-88). "At the first stage of postconviction proceedings under the Act, a petition alleging ineffective assistance may not be summarily dismissed if (i) it is arguable that counsel's performance fell below an objective standard of reasonableness and (ii) it is arguable that the defendant was prejudiced." Id.
¶ 22 "A court uses the Strickland analysis also to test the adequacy of appellate counsel." People v. Simms, 192 Ill.2d 348, 362, 736 N.E.2d 1092, 1106 (2000). "A defendant who contends that appellate counsel rendered ineffective assistance, e.g., by failing to argue a particular issue, must show that appellate counsel's failure to raise the issue was objectively unreasonable and prejudiced the defendant." Id. In this context, the prejudice inquiry "requires that the reviewing court examine the merits of the underlying issue [citation], for a defendant does not suffer prejudice from appellate counsel's failure to raise a nonmeritorious claim on appeal." Id.
¶ 23 Initially, defendant contends on appeal that his pro se petition sets forth arguable claims that his trial counsel was ineffective for failing to impeach C.H. at trial with a prior inconsistent statement and that his appellate counsel was ineffective for failing to raise the issue on direct appeal. "Generally, the decision whether or not to cross-examine or impeach a witness is a matter of trial strategy which will not support a claim of ineffective assistance of counsel." People v. Pecoraro, 175 Ill.2d 294, 326, 677 N.E.2d 875, 891 (1997). However, as defendant argues on appeal, there are circumstances that exist when a failure to impeach a witness may be deemed objectively unreasonable, such as when trial counsel does not "make use of obviously useful impeachment against a key State witness." People v. Vera, 277 Ill.App.3d 130, 140, 660 N.E.2d 9, 17 (1995); see also People v. Zambrano, 2016 IL App (3d) 140178, ¶ 24, 64 N.E.3d 639 ("Where counsel completely fails to use significant impeachment evidence to impeach a key witness, such conduct may not be sound strategy and may constitute ineffective assistance.").
¶ 24 Here, in his pro se postconviction petition, defendant alleged his trial counsel should have impeached C.H.'s testimony that "Kill told [C.H.] he lived in Texas." He asserted "reports" and "videos" in the case showed C.H. previously claimed something different-"that Kill lived far away." Defendant suggested C.H.'s version of events changed by the time of trial and after C.H. could have learned of where defendant was arrested. He also claimed that his appellate counsel was ineffective for failing to raise the issue on direct appeal.
¶ 25 The record contains support for defendant's factual allegations, showing C.H. testified at trial in November 2018 that he asked what state Kill lived in and Kill told C.H. he lived in Texas. It also shows that during a prior recorded interview in July 2015, C.H. reported that Kill stated only that he lived "far from Illinois," and he denied that Kill ever said "what state." Although defendant did not allege precisely how he was prejudiced by his counsel's alleged deficient performance, both parties acknowledge that a pro se defendant is not required to set forth his constitutional claim in its entirety. See Edwards, 197 Ill.2d at 244-45 (rejecting an argument that a pro se postconviction petitioner must allege facts to support all the elements of a constitutional claim to survive a first-stage dismissal). Further, as defendant argues on appeal, the record reflects that C.H. was an important witness in the case against him, the identity of "Kill" was a central issue in the case, and the State relied on C.H.'s trial testimony that Kill stated he was from Texas when arguing that defendant was the individual behind the "My Name is K1 ll' gamertag. Under the circumstances presented, we accept the State's concession that defendant's ineffective-assistance claims were at least arguably meritorious and ultimately sufficient to meet the low threshold for survival at the first stage of postconviction proceedings. In so holding, we express no opinion regarding the ultimate merit of defendant's claims.
¶ 26 Additionally, given our holding regarding the impeachment issue, we find it unnecessary to address defendant's remaining contentions on appeal that his pro se petition raised additional issues that set forth the gist of constitutional claims. We note that partial summary dismissals are not permitted at the first stage of postconviction proceedings. People v. Rivera, 198 Ill.2d 364, 374, 763 N.E.2d 306, 311-12 (2001). "If a single claim in a multiple-claim postconviction petition survives the summary dismissal stage of proceedings under the *** Act, then the entire petition must be docketed for second-stage proceedings regardless of the merits of the remaining claims in the petition." People v. Romero, 2015 IL App (1st) 140205, ¶ 27, 36 N.E.3d 323. Here, because we accept the State's concession that defendant presented an arguably meritorious claim that survives the summary dismissal stage, defendant's entire petition should be docketed for further proceedings.
¶ 27 III. CONCLUSION
¶ 28 For the reasons stated, we reverse the trial court's judgment and remand for further postconviction proceedings.
¶ 29 Reversed and remanded.