Opinion
NO. 4-12-1038
05-05-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORNELIUS L. JONES, 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
Circuit Court of
Macon County
No. 08CF1053
Honorable
Timothy J. Steadman,
Judge Presiding.
JUSTICE TURNER delivered the judgment of the court.
Justices Knecht and Steigmann concurred in the judgment.
ORDER
¶ 1 Held: The appellate court found the trial court did not err in summarily dismissing defendant's postconviction petition. ¶ 2 In January 2009, a jury found defendant, Cornelius L. Jones, guilty of first degree murder. In February 2009, the trial court sentenced him to 60 years in prison. This court affirmed on direct appeal. In March 2011, defendant filed a pro se petition for postconviction relief, which the trial court summarily dismissed. ¶ 3 On appeal, defendant argues the trial court erred in summarily dismissing his postconviction petition. We affirm.
¶ 4 I. BACKGROUND
¶ 5 In July 2008, the State charged defendant and Dorian Harris by information with six counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2006)) in connection with the death of Benny Topps. Defendant pleaded not guilty. ¶ 6 In January 2009, defendant's jury trial on three counts of first degree murder against him commenced. Terry Bond testified Benny Topps was one of his best friends. On July 23, 2008, a man with dreadlocks came to a mechanic shop and asked to speak with Benny. Benny walked out with the man. When the men reached a nearby alley, Bond saw the man with the dreadlocks raise "a shiny object in his hand." Bond then heard a shot and then 8 to 10 more. Bond then went out and saw Benny lying in the alley. On cross-examination, Bond stated defendant was the man with the dreadlocks. ¶ 7 Joe Gipson testified he saw a male exit a Cadillac and motion to Benny to come over to him. Gipson saw Benny walk outside without anything in his hands. Gipson told Benny not to go because he saw the male with a gun in his hand. Benny told Gipson not to worry about it and that " 'I got this.' " Gipson saw Benny and the man stand and talk at the back of the car. Benny turned around to walk away when Gipson heard a gunshot. Benny fell down and "the dude came up and finished shooting him." ¶ 8 Lieutenant Topps, Benny's brother, testified he and Benny agreed to pick up cocaine for defendant. Benny traveled to Texas with $45,000 from defendant but returned without any cocaine or money. Upon Benny's return, Lieutenant described him as being nervous. Lieutenant and his brother discussed giving defendant several vehicles to replace the lost money. ¶ 9 Decatur police officer Steven Carroll testified he responded to a report of a shooting at approximately 10 a.m. on July 23, 2008. Upon arrival, he observed several casings lying in an alley and near the unresponsive victim, Benny Topps. Decatur police officer Joseph Kish testified he reviewed a surveillance video from a nearby business and observed a tan- or gold-colored Cadillac drive by three times. ¶ 10 Illinois State Police Trooper Anthony Maro testified he was advised of the shooting and that the possible suspect vehicle was a gold Cadillac occupied by a black male with dreadlocks. At approximately 10:40 a.m., Maro executed a traffic stop of a gold Cadillac occupied by two males. An interior inspection of the car revealed "a live round and a spent shell casing on the passenger seat." He also found a black duffel bag containing a dreadlocks wig and a handgun. ¶ 11 Dr. John Ralston, a forensic pathologist, testified he performed an autopsy on Benny Topps. Ralston observed 10 wounds on the body. He stated the "entrance wounds were located posturally on his back" with the possible exception of a wrist wound. One shot passed through Benny's neck, fracturing his cervical spine. Another projectile went from his lower back through his right ventricle and then the right atrium of his heart. Ralston stated this wound "would have been rapidly fatal." Another projectile hit his aorta, "which would have caused massive hemorrhage." Based on a reasonable degree of medical certainty, Ralston opined Benny died from multiple gunshot wounds. ¶ 12 Cory Formea, a forensic scientist with the Illinois State Police, testified a deoxyribonucleic-acid (DNA) profile from the dreadlocks hat/wig matched the DNA profile of defendant. Vickie Reels, a forensic scientist the Illinois State Police, testified the gun found in the duffel bag fired the bullet casings and bullets recovered by the police. ¶ 13 Defendant testified in his own defense and admitted he had a prior conviction for drug trafficking with a firearm. Benny and Lieutenant Topps are his step-uncles. When Benny came to defendant's mother's house on previous occasions, defendant saw him with a weapon "all the time." Defendant denied talking with Benny about a drug deal, but they did talk about a guy in Decatur selling a backhoe. Defendant gave Benny $34,000 in cash to purchase the backhoe. After Benny did not make the purchase, he refused to give back defendant's money. Defendant stated Benny threatened him if he came looking for his money. ¶ 14 Defendant and Dorian Harris drove to Decatur in a Cadillac, and defendant brought a gun to protect himself. He stated he kept his dreadlocks hat in the car with him to wear "every now and then." Defendant wore the hat when he found Benny in the garage. Defendant carried his gun because of Benny's prior threat. As they walked to the car, defendant thought Benny had a gun because he knew he carried one "all the time." Defendant stated Benny was "mad and pissed off" and looked over defendant's shoulder "like somebody was coming from behind." This made defendant nervous. Defendant looked back, and when he turned around, Benny "looked like he was trying to reach for something." Defendant thought he was reaching for a gun. Defendant got scared and shot Benny. When asked if he ever saw a gun, defendant stated that after the shooting, Benny fell and something "tumbled to the ground." If defendant had seen a cellular phone in Benny's hand, he "probably would have" shot him because the "way he was reacting." Defendant shot Benny until he felt "he wasn't able to do nothing to [him]." Defendant stated Benny was "trying to take off running after [he] started shooting him." After the shooting, defendant "hopped in the car" and left. ¶ 15 On cross-examination, defendant claimed his whole family saw Benny carrying a gun every time he drove a truck. Defendant named these relatives as: Dorena Hollins, John Jones, John Willington, and Ryan Willington. Defendant testified he did not see Benny with a gun prior to the shooting. During a police interview, defendant denied killing Benny. He also did not tell police that Benny owed him money or that he came to Decatur to talk about the backhoe. ¶ 16 During closing arguments, defense counsel argued "there is not one shred of evidence that corroborates Lieutenant Topps' version of anything." Further, counsel asserted "not one person can corroborate that." In rebuttal, the prosecutor noted the presumption of innocence and that defendant had no burden of producing evidence. The trial court overruled two defense objections to the prosecutor's rebuttal about hearing from no one, other than defendant, who had seen Benny with a gun. ¶ 17 Following closing arguments, the jury found defendant guilty of first degree murder. The jury also found defendant personally discharged a firearm that proximately caused the death of another during the commission of the offense. ¶ 18 Defendant filed a motion for judgment of acquittal or, in the alternative, a motion for a new trial. In February 2009, the trial court denied the posttrial motion. The court then sentenced defendant to 35 years in prison for the offense of first degree murder along with an additional 25-year enhancement for personally discharging a firearm that proximately caused the death of another person. ¶ 19 On direct appeal, appellate counsel argued (1) the trial court abused its discretion in refusing to instruct the jury on self-defense and (2) the State improperly shifted the burden of proof during closing argument. People v. Jones, No. 4-09-0136 (Oct. 28, 2009) (unpublished order under Supreme Court Rule 23). This court affirmed. In finding the trial court did not abuse its discretion in denying defendant's requested self-defense instruction, this court found the evidence indicated defendant was the initial aggressor and the danger of harm was not imminent. On the issue of closing arguments, we found the issue forfeited because it was not raised in the posttrial motion. We also declined to address the merits since defendant did not ask this court to review the issue under the plain-error doctrine. ¶ 20 In March 2011, defendant filed a pro se petition for postconviction relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2010)). Therein, defendant alleged, inter alia, his counsel on direct appeal provided ineffective assistance when he failed to argue the prosecutorial-misconduct claim should be reviewed as plain error and that trial counsel was ineffective for failing to present any mitigating evidence at sentencing, even though defendant had informed him about available witnesses, including Yolanda Wells and Geneva Jones. ¶ 21 Defendant attached notarized affidavits to his petition from himself, Wells, and Jones. In his affidavit, defendant stated he informed trial counsel that Wells and Jones could testify at sentencing on his behalf. Wells stated she was defendant's fiancée and mother of his children. Up until his arrest, she found defendant to be "a committed, devoted and loving fiancé[] and father." She stated defendant was never physically or verbally violent with anyone and she would have testified to her knowledge had she been called. ¶ 22 Jones stated she was Benny's sister and defendant's aunt. She knew defendant as a "devoted and loving nephew" and she never knew him to lie, cheat, or steal from anyone. She stated she had heard Benny make bodily threats on "numerous occasions" and witnessed him "carry out some of the threats of bodily harm to numerous individuals whom were not aggressors." She also observed Benny use a gun, knives, baseball bats, and bottles to inflict bodily harm. Jones stated that had she been called a witness, she could have testified to her declarations. ¶ 23 The trial court summarily dismissed defendant's petition. On the issue of ineffective assistance of appellate counsel, the court found the claim was based on an indisputably meritless legal theory as it had been raised on direct appeal. In April 2011, defendant filed a motion to reconsider. In October 2012, the court denied the motion. This appeal followed.
¶ 24 II. ANALYSIS
¶ 25 A. Postconviction Petition
¶ 26 The Act "provides a mechanism for criminal defendants to challenge their convictions or sentences based on a substantial violation of their rights under the federal or state constitutions." People v. Morris, 236 Ill. 2d 345, 354, 925 N.E.2d 1069, 1075 (2010). A proceeding under the Act is a collateral proceeding and not an appeal from the defendant's conviction and sentence. People v. English, 2013 IL 112890, ¶ 21, 987 N.E.2d 371. The defendant must show he suffered a substantial deprivation of his federal or state constitutional rights. People v. Caballero, 228 Ill. 2d 79, 83, 885 N.E.2d 1044, 1046 (2008). ¶ 27 The Act establishes a three-stage process for adjudicating a postconviction petition. English, 2013 IL 112890, ¶ 23, 987 N.E.2d 371. Here, defendant's petition was dismissed at the first stage. At the first stage, the trial court must review the postconviction petition and determine whether "the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2010). Our supreme court has held "a pro se petition seeking postconviction relief under the Act for a denial of constitutional rights may be summarily dismissed as frivolous or patently without merit only if the petition has no arguable basis either in law or in fact." People v. Hodges, 234 Ill. 2d 1, 11-12, 912 N.E.2d 1204, 1209 (2009). A petition lacks an arguable legal basis when it is based on an indisputably meritless legal theory, such as one that is completely contradicted by the record. Hodges, 234 Ill. 2d at 16, 912 N.E.2d at 1212. A petition lacks an arguable factual basis when it is based on a fanciful factual allegation, such as one that is clearly baseless, fantastic, or delusional. Hodges, 234 Ill. 2d at 16- 17, 912 N.E.2d at 1212. ¶ 28 "In considering a petition pursuant to [section 122-2.1 of the Act], the [trial] 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." 725 ILCS 5/122-2.1(c) (West 2010); People v. Brown, 236 Ill. 2d 175, 184, 923 N.E.2d 748, 754 (2010). The petition must be supported by "affidavits, records, or other evidence supporting its allegations," or, if not available, the petition must explain why. 725 ILCS 5/122-2 (West 2010). Our review of the first-stage dismissal of a postconviction petition is de novo. People v. Dunlap, 2011 IL App (4th) 100595, ¶ 20, 963 N.E.2d 394. Moreover, we may affirm the dismissal of a postconviction petition on any basis supported by the record. People v. Wright, 2013 IL App (4th) 110822, ¶ 32, 987 N.E.2d 1051.
¶ 29 B. Assistance of Counsel
¶ 30 1. Prosecutorial Misconduct
¶ 31 Defendant argues the trial court erred in summarily dismissing his postconviction petition, claiming it set forth an arguable claim that appellate counsel was ineffective for allowing his prosecutorial-misconduct claim to be forfeited on direct appeal. We disagree. ¶ 32 Claims of ineffective assistance of trial and appellate counsel are evaluated under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Enis, 194 Ill. 2d 361, 377, 743 N.E.2d 1, 11 (2000). To prevail on a claim of ineffective assistance of counsel, a defendant must prove (1) his counsel's performance was deficient and (2) he was prejudiced by that deficiency. Strickland, 466 U.S. at 687. A defendant raising a claim of ineffective appellate counsel "must show both that appellate counsel's performance was deficient and that, but for counsel's errors, there is a reasonable probability that the appeal would have been successful." People v. Patrenko, 237 Ill. 2d 490, 497, 931 N.E.2d 1198, 1203 (2010). At the first stage of postconviction proceedings, "a petition alleging ineffective assistance of counsel 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." Patrenko, 237 Ill. 2d at 497, 931 N.E.2d at 1203 (citing Hodges, 234 Ill. 2d at 17, 912 N.E.2d at 1212). ¶ 33 In the case sub judice, counsel on direct appeal raised two contentions of error, including the claim the prosecutor improperly shifted the burden of proof to the defense during rebuttal closing argument when he commented on defendant's failure to call witnesses to corroborate his testimony that Benny always carried a gun. See People v. Phillips, 127 Ill. 2d 499, 527, 538 N.E.2d 500, 511 (1989) (stating "it is impermissible for the prosecution to attempt to shift the burden of proof to the defense"). This court found the issue forfeited and declined to address the merits because appellate counsel did not ask us to review the issue under the plain-error doctrine. ¶ 34 In his postconviction petition, defendant argued he was denied the effective assistance of appellate counsel when counsel failed to ask this court to review the prosecutorial-misconduct issue as a matter of plain error. However, even had appellate counsel asked this court to review the issue under the plain-error doctrine, it would not have been successful. ¶ 35 The plain-error doctrine allows a court to disregard a defendant's forfeiture and consider unpreserved error when either:
"(1) the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant; or (2) the error was so fundamental and of such magnitude that it affected¶ 36 Under both prongs of the plain-error analysis, the burden of persuasion remains with the defendant. Wilmington, 2013 IL 112938, ¶ 43, 983 N.E.2d 1015. As the first step in the analysis, we must determine whether any error occurred at all. People v. Taylor, 2011 IL 110067, ¶ 30, 956 N.E.2d 431. "If error did occur, we then consider whether either prong of the plain-error doctrine has been satisfied." People v. Sykes, 2012 IL App (4th) 111110, ¶ 31, 972 N.E.2d 1272. ¶ 37 In the case sub judice, we conclude defendant's claim has no arguable merit in law as it is completely contradicted by the record. Defendant claims the State repeatedly argued the jury should not believe his testimony that Benny always carried a gun because defendant did not present any witnesses corroborating that testimony. However, the prosecutor's closing remarks were made in rebuttal and in response to defense counsel's remarks that the State presented no witnesses who would corroborate Lieutenant Topps' testimony that his brother did not routinely carry a gun. Defendant testified in support of his actions that he feared Benny because Benny routinely carried a gun, and he and other relatives saw him do so when he was driving a truck. Lieutenant Topps testified this was not true. When defense counsel argued in closing that no witnesses were called to support Topps' testimony, the prosecutor could properly respond that no witnesses were called to support defendant's testimony. See People v. Williams, 40 Ill. 2d 522, 528, 240 N.E.2d 645, 649 (1968) (stating "if it is developed in a trial that a witness exists, presumably under the control of a defendant, who can throw light upon a vital matter, and he is not produced, certainly a jury may fairly consider that fact, and, likewise, counsel would have a legitimate right to comment thereon"). ¶ 38 Even if the prosecutor's remarks could be considered improper, they did not amount to plain error. First, the evidence of defendant's guilt was overwhelming as it showed he held a grudge against Benny and shot the unarmed victim eight times in the back. Second, the jury was instructed that the State had the burden of proof in this case. As defendant could not have established plain error, counsel on direct appeal did not arguably fall below the objective standard of reasonableness and defendant was not arguably prejudiced by counsel's failure to ask this court to review the issue under the plain-error doctrine. Thus, the issue was subject to dismissal at the first stage.
the fairness of the trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." People v. Wilmington, 2013 IL 112938, ¶ 31, 983 N.E.2d 1015.
¶ 39 2. Sentencing Hearing
¶ 40 Defendant also argues his petition set forth an arguable claim that trial counsel was ineffective for failing to investigate known and available witnesses, Geneva Jones and Yolanda Wells, who could have corroborated his trial testimony and provided mitigation evidence at sentencing. We disagree. ¶ 41 Initially, defendant's claim now on appeal that Geneva Jones had potentially relevant trial testimony is forfeited because he did not raise the issue in his postconviction petition. See People v. Jones, 213 Ill. 2d 498, 508, 821 N.E.2d 1093, 1099 (2004) (stating an issue not raised in the petition cannot be raised for the first time on appeal). ¶ 42 In his petition, defendant claimed counsel at sentencing failed to contact or interview Jones and Wells and call them as witnesses in mitigation. Defendant faced a sentence of 20 to 60 years in prison for murder plus a 25-to-life sentence for having committed the murder with a firearm. The State asked for a sentence of 40 years in prison for the murder plus the minimum enhancement of 25 years for a total of 65 years. The trial court noted defendant was not a first-time offender and shot the unarmed victim numerous times. Thus, the court found a sentence in excess of the minimum was appropriate and sentenced defendant to 35 years for murder plus the minimum enhancement of 25 years. ¶ 43 The presentence report indicated defendant was single, had never married, and he denied having children. Defendant also indicated he had been in a dating relationship with Ursula Miller over the past 12 years. In her affidavit, Wells stated she was defendant's fiancée and the mother of his children. She also stated she had known defendant since July 2004, and they had been a couple ever since. ¶ 44 Defendant's claim that trial counsel was ineffective for not calling Wells as a witness in mitigation is clearly baseless. The statement made in the presentence report and Wells' affidavit contradict one another. Had counsel called Wells to testify, it would have subjected defendant to possible prejudice given the apparent dual relationships he enjoyed. Given the circumstances of the offense, along with the contradictions Wells would have provided had she testified, defendant cannot show he was even arguably prejudiced by counsel's decision not to call her. ¶ 45 In her affidavit, Jones stated she knew defendant to be a devoted and loving nephew and one who never lied to, stole from, or cheated any family members. Further, she stated she heard her brother Benny make threats of bodily harm and also saw him use weapons in inflicting that bodily harm. ¶ 46 Defendant cannot show he was even arguably prejudiced by counsel not calling Jones to testify at sentencing. Jones did not state Benny ever threatened defendant or threatened him while armed with a weapon. Here, where the unarmed victim was shot repeatedly from behind over a bad debt, the testimony of Jones would have had no effect on the trial court's sentence. Thus, as defendant cannot show counsel was ineffective, the court did not err in summarily dismissing his postconviction petition.
¶ 47 III. CONCLUSION
¶ 48 For the reasons stated, we affirm the trial court's judgment. As part of our judgment, we award the State its $50 statutory assessment against defendant as costs of this appeal. ¶ 49 Affirmed.