Opinion
No. 1-17-0389
03-05-2020
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY HATTER, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 13 CR 18258 Honorable James M. Obbish, Judge, presiding. JUSTICE LAMPKIN delivered the judgment of the court.
Justices Reyes and Burke concurred in the judgment.
ORDER
¶ 1 Held: The trial court's summary dismissal of defendant's postconviction petition is affirmed where defendant failed to present a non-frivolous claim of a constitutional violation to warrant further proceedings under the Post-Conviction Hearing Act. We remand so that defendant may raise alleged errors in the application of per diem presentencing custody credit to his fines and fees in the trial court. ¶ 2 Defendant Anthony Hatter appeals from the summary dismissal of his pro se petition for post-conviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)). On appeal, defendant contends the trial court erroneously dismissed his petition 2 where he set forth a non-frivolous claim of a constitutional violation, namely that defense counsel was ineffective for not raising a credible defense to the charges to which defendant pled guilty. Defendant also argues certain monetary assessments against him should be offset by per diem presentencing credit. We affirm the trial court's judgment and remand to the trial court to allow defendant to raise alleged errors in the trial court's imposition of fines, fees, and costs. ¶ 3 Defendant was charged with nine counts of criminal sexual assault arising out of three acts of sexual penetration defendant inflicted on F.T., his live-in girlfriend's minor daughter, on August 21, 2013. The State charged defendant made contact between his penis and F.T.'s vagina, made contact between his mouth and F.T.'s vagina, and inserted his finger into F.T's vagina, and that he committed each act (1) by use of force or the threat of force; (2) knowing F.T. was unable to give knowing consent; and (3) while F.T. was under 18 years of age and defendant was a "family member," specifically he was the live-in boyfriend of F.T.'s mother (Counts 7, 8, 9). 720 ILCS 5/11-1.2(a)(1), (2), (3) (West 2016). ¶ 4 On January 10, 2014, pursuant to a negotiated plea, defendant agreed to plead guilty to two counts of criminal sexual assault in exchange for a four-year sentence on each count, to be served consecutively. The trial court advised defendant he was pleading guilty to Counts 7 and 9, which charged he committed criminal sexual assault where he knowingly committed an act of sexual penetration (penis to vagina; finger into vagina) upon F.T., a minor, and defendant was her "family member," the live-in boyfriend of F.T.'s mother. The court informed defendant that the charge 3 carried a possible sentence of 4 to 15 years' imprisonment with possible extension up to 30 years' imprisonment if certain aggravating factors were present, and a two-year term of mandatory supervised release (MSR). Defendant told the court he understood the charges and the sentencing range. He understood he was giving up the right to a jury or bench trial, to confront and cross-examine witnesses, present evidence on his own behalf, and to remain silent and rely on the State's inability to prove him guilty. Defendant indicated he was pleading guilty of his own free will, and nobody threatened or promised him anything in order to plead guilty. ¶ 5 The parties stipulated that, if the case proceeded to trial, F.T. would testify that, on August 21, 2013, she was at home with defendant, her mother's live-in boyfriend, whom she would identify in open court. On that day, she laid down to go to sleep and felt someone touching her clothing. She saw defendant in the room; he told her he was looking for the remote control. F.T. lay back down and pretended to go back to sleep. She shortly felt defendant pulling down her underwear and leggings, at which point he "placed his head between her buttocks and began to lick." Defendant subsequently placed his fingers inside her vagina. F.T. would testify "it hurt," and she was "extremely afraid and continued to act as though she were asleep." ¶ 6 F.T. would testify defendant then "put his penis inside of her vagina," which also "hurt" F.T. He removed his penis a short time later and F.T. felt wetness in the area. Defendant pulled up F.T.'s underwear and leggings and walked out of the room. When F.T.'s brother arrived home, she cried out to him and subsequently called the police, who arrived and arrested defendant. The evidence would show that F.T.'s birthday was February 25, 2000, and that the "family member relation" was that defendant was F.T.'s mother's live-in boyfriend, who lived with F.T. at that address and was over the age of 17 at the time of the incident. 4 ¶ 7 Defendant agreed these were the facts the State would present. The court accepted defendant's guilty plea, finding he understood the nature of the charges, penalties, and his legal rights, that he was pleading guilty freely and voluntarily, and that a factual basis existed to support the plea. The State nol-prossed the remaining seven counts. The court sentenced defendant to two consecutive four-year prison terms, two years of MSR, awarded him 143 days of presentence custody credit, and imposed $699 in mandatory fines, fees, and costs. Defendant did not move to withdraw his plea or file a direct appeal. ¶ 8 In late 2015, defendant wrote to his plea counsel to inform her that, while he was told his parole would be two years' MSR, he subsequently learned the actual term was statutorily "three years to life." Plea counsel filed a motion in the circuit court, calling this issue to the attention of the court which scheduled a hearing with defendant present. Recognizing defendant had agreed to plead guilty to a determinate two-year MSR term and not an indeterminate term of three years to life, the court offered defendant the opportunity to "start all over again," where the plea would be vacated and defendant could "go to trial, negotiate or whatever." Defendant chose to accept the previous plea negotiation but with the amended three years to life MSR term. Defendant told the court no one threatened or promised him anything to make his decision, and his defense counsel adequately explained the situation to him so that he could make a rational decision. The court issued a corrected mittimus reflecting the change on November 18, 2015, nunc pro tunc to the original sentencing date. ¶ 9 On September 21, 2016, defendant filed a pro se post-conviction petition alleging his constitutional rights were violated at the plea proceeding. In a single handwritten paragraph of argument, set forth here in its entirety, he argued: 5 "Due process violate [sic] through the ineffective Assistance of counsel. I am convicted of crime sex assault on a family member. I did not assault a family member. My attorney lied to me and force [sic] me/coherced [sic] me into pleading guilty. This is not what I was [a]ccused of doing. There was not any family member invol[v]ed at all. My lawyer stated I have to take 3 yrs. [t]o life, but the judge order 2 yrs. M.S.R. 720 5/11-0.1 state "family member" means a parent, grandparent, child, aunt, uncle, great-aunt or great-uncle, whether by whole blood, half-blood or adoption, and includes a step-grandparent, step-parent, or step-child. "Family member" also means, if the victim is a child under 18 years of age, an accused who has resided in the household with the child continuously for at least 6 mos. I only was there [word scratched out] [unclear writing] 2 mos." Defendant attached a notarized affidavit verifying the allegations in his petition were true and correct to the best of his knowledge. ¶ 10 On November 18, 2016, the trial court dismissed defendant's petition in a written order, finding the issues presented to be frivolous and patently without merit. The court interpreted defendant's petition as presenting three claims: his guilty plea was involuntary because trial counsel coerced him into pleading guilty, he was actually innocent of the crimes of which he was convicted as he was not a "family member" as charged, and ineffective assistance of counsel in advising him regarding the MSR term. The trial court found the guilty plea to be voluntary, the actual innocence claim was meritless as defendant pled guilty and the State would have proven defendant resided with F.T. and her mother in the same household at trial, and plea counsel had properly advised defendant regarding the three years to life MSR term. The trial court noted that, 6 when the court determined it had imposed the incorrect MSR term, it gave defendant an opportunity to withdraw his plea, which defendant elected not to do. ¶ 11 On appeal, defendant argues the trial court erred when it summarily dismissed his post-conviction petition. He contends that, reading the petition liberally, he set forth a non-frivolous claim that plea counsel was ineffective for not raising a credible defense to defendant's charges, namely that he was not a "family member" under the criminal sexual assault statute because the statute requires a six-month continuous residency but he only resided with F.T.'s mother for two continuous months. Defendant argues that, given the viability of the defense, counsel was arguably deficient in not raising it at trial where a reasonable investigation would have discovered the lack of proof that he resided in the household for six months. He claims he was arguably prejudiced by that deficient performance as the strength of the defense demonstrates the likelihood he would have pleaded not guilty and gone to trial. ¶ 12 The Act provides a three-stage method by which imprisoned persons may collaterally challenge their convictions for violations of federal or state constitutional rights. 725 ILCS 5/122-1 et seq. (West 2016); People v. LaPointe, 227 Ill. 2d 39, 43 (2007). The trial court here summarily dismissed defendant's petition at the first stage. At the first-stage of postconviction proceedings, the trial court must independently review the petition, taking the allegations as true, and determine whether "the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2016); People v. Edwards, 197 Ill. 2d 239, 244 (2001). A petition is frivolous or patently without merit if it has no arguable basis either in law or in fact and, rather, is based on a meritless legal theory or fanciful factual allegations. People v. Hodges, 234 Ill. 2d 1, 11-13, 16 (2009). The petition need only present a limited amount of detail and need not set forth the claim in its entirety. 7 People v. Edwards, 197 Ill.2d 239, 244 (2001). In determining whether a petition presents a valid claim for relief, "the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding," as well as any affidavits, records, or other evidence supporting its allegations. 725 ILCS 5/122-2.1(c) (West 2016); 725 ILCS 5/122-2 (West 2016). Our review of the summary dismissal of defendant's petition is de novo. Hodges, 234 Ill. 2d at 9. ¶ 13 To state a claim of ineffective assistance of counsel in first stage postconviction proceedings, defendant must demonstrate it is arguable that (1) counsel's performance "fell below an objective standard of reasonableness" and (2) defendant was prejudiced by counsel's deficient performance. Id. at 17 (citing Strickland v. Washington, 466 U.S. 668, 678-88 (1984)). In the context of a guilty plea, "[a]n attorney's conduct is deficient if the attorney failed to ensure that the defendant's guilty plea was entered voluntarily and intelligently." People v. Hall, 217 Ill. 2d 324, 335 (2005). To establish the prejudice prong of the ineffective assistance of counsel claim, the defendant must show there is a reasonable probability that, absent counsel's errors, he would have pleaded not guilty and insisted on going to trial. Id. ¶ 14 However, we need not determine whether counsel's performance was deficient before examining the prejudice suffered by defendant as a result of any alleged deficiencies. People v. Pugh, 157 Ill. 2d 1, 15 (1993). If the defendant fails to show he was arguably prejudiced by his counsel's performance, then we can dispose of the ineffective assistance claim on prejudice alone. People v. Wilson, 2014 IL App (1st) 113570, ¶ 46. We proceed directly to the prejudice prong here. 8 ¶ 15 Defendant pled guilty to two counts of criminal sexual assault alleging as an element of the offense that he was a "family member" of the minor F.T. when he committed the acts of sexual penetration. 720 ILCS 5/11-1.2(a)(3) (West 2012). Relevant here, "family member" is defined as "an accused who has resided in the household with the child continuously for at least 6 months" if the victim is a child under 18 years of age. 720 ILCS 5/11-0.1 (West 2016). He pled guilty to these two charges in exchange for the State's nolle prosequi of the other seven criminal sexual assault counts against him. ¶ 16 To show prejudice from ineffective assistance of counsel, defendant must show there is a reasonable probability that, absent counsel's errors, he would have pleaded not guilty and insisted on going to trial. Hall, 217 Ill. 2d at 335. "A bare allegation that [he] would have pleaded not guilty and insisted on going to trial if counsel had not been deficient is not enough to establish prejudice." Id. Rather, his claim must be accompanied by either a claim of innocence or the articulation of a plausible defense that could have been raised at trial. Id. Further, defendant must convince the court that a decision to reject the plea would have been rational under the circumstances. People v. Valdez, 2016 IL 119860, ¶ 29. The question of whether counsel's alleged deficient performance actions caused defendant to plead guilty depends in large part on predicting whether he likely would have succeeded at trial. Hall, 217 Ill. 2d at 336; Pugh, 157 Ill. 2d at 15. ¶ 17 We find defendant has not established a reasonable probability that, absent counsel's failure to investigate and present the "not any family member" defense, defendant would have pleaded not guilty and insisted on going to trial. ¶ 18 Defendant must show there is a reasonable probability that, absent counsel's errors, he would have pleaded not guilty to the two "family member" counts and insisted on going to trial 9 (Hall, 217 Ill. 2d at 335), but nowhere in his petition or attached verification affidavit does defendant contend he would not have pleaded guilty to those counts absent counsel's deficient performance. Even though a pro se defendant may present a "limited amount of detail," in his postconviction petition, he is not excused "from providing any factual detail whatsoever on the alleged constitutional deprivation." People v. Brown, 236 Ill. 2d 175, 184 (2010); 725 ILCS 5/122-2 (West 2016) ("The petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.") ¶ 19 Even if we read defendant's assertion that counsel coerced him into pleading guilty liberally as an assertion that he would not have pleaded guilty had counsel raised the "family member" defense, this bare allegation is still insufficient to show prejudice. See Hall, 217 Ill. 2d at 335. Taking defendant's unsupported assertion that he only lived with F.T. for two months as true, he has a plausible defense against the two charges to which he pleaded guilty. But in order to show prejudice, defendant must convince the court that his decision to reject the plea would have been rational under the circumstances. Valdez, 2016 IL 119860, ¶ 29. Defendant cannot make that showing here, where he was originally charged with nine counts of criminal sexual assault, but as a result of his plea was only sentenced on two counts. In exchange for his pleading guilty to two counts premised on his being F.T.'s "family member," the State nol-prossed the other seven counts. Six of those counts did not rely on defendant's status as a "family member." Instead, they charged defendant with three separate acts of sexual penetration (penis, mouth and finger), each committed by his use or threat of force (720 ILCS 5/11-1.20(a)(1) (West 2012)) and/or knowing F.T. was unable to consent (720 ILCS 5/11-1.20(a)(2) (West 2012)). Defendant does not claim he would have succeeded on any of these other counts had he rejected the plea agreement and gone 10 to trial on all counts. Indeed, defendant never claimed he was innocent of those six counts, that he did not commit sexual penetration of F.T., or that he had a plausible defense to these counts. See Hall, 217 Ill. 2d at 336 (whether counsel's alleged deficient performance caused defendant to plead guilty depends in large part on predicting whether he likely would have succeeded at trial). ¶ 20 Accordingly, the record does not demonstrate a reasonable probability that, but for counsel's alleged deficient performance, defendant would have rejected the plea agreement. We find defendant's petition does not demonstrate he was arguably prejudiced by counsel's alleged deficiencies during the plea negotiations and thus does not state an arguable claim of ineffective assistance of counsel. ¶ 21 In his opening brief, defendant contends certain fines and fees the trial court assessed against him should be offset by per diem monetary credit. However, in his reply brief, he agrees with the State that, because he failed to raise these claims in the trial court, the issue should be remanded to the trial court under Illinois Supreme Court Rule 472. We agree with the parties. ¶ 22 On February 26, 2019, while this appeal was pending, our supreme court adopted new Illinois Supreme Court Rule 472, which sets forth the procedure in criminal cases for correcting sentencing errors in, as relevant here, the application of per diem credit against fines." Ill. S. Ct. R. 472(a)(2) (eff. Mar. 1, 2019). On May 17, 2019, Rule 472 was amended to provide that "[i]n all criminal cases pending on appeal as of March 1, 2019, or appeals filed thereafter in which a party has attempted to raise sentencing errors covered by this rule for the first time on appeal, the reviewing court shall remand to the circuit court to allow the party to file a motion pursuant to this rule." Ill. S. Ct. R. 472(e) (eff. May 17, 2019). "No appeal may be taken" on the ground of any of the sentencing errors enumerated in the rule unless that alleged error "has first been raised in the 11 circuit court." Ill. S. Ct. R. 472(c) (eff. May 17, 2019). Therefore, as defendant's appeal was pending on March 1, 2019, pursuant to Rule 472, we "remand to the circuit court to allow [defendant] to file a motion pursuant to this rule," raising the alleged errors regarding per diem credit. Ill. S. Ct. R. 472(e) (eff. May 17, 2019). ¶ 23 Accordingly, the fines and fees issues are remanded pursuant to Rule 472(e). The trial court is affirmed in all other respects. ¶ 24 Affirmed; fines and fees issues remanded.