People v. Smith

Full title: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSHUA E…

Court: APPELLATE COURT OF ILLINOIS THIRD DISTRICT

Date published: May 6, 2013

2013 Ill. App. 3d 110687 (Ill. App. Ct. 2013)

Opinion

3-11-0687

05-06-2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSHUA E. SMITH, Defendant-Appellant.

O'BRIEN

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 the 14th Judicial Circuit,

Rock Island County, Illinois,

Appeal No. 3-11-0687

Circuit No. 05-CF-1067

Honorable

Walter D. Braud,

Judge, Presiding.

JUSTICE delivered the judgment of the court.

Justices Lytton and Schmidt concurred in the judgment.

ORDER

¶ 1 Held: The trial court did not err in dismissing defendant's amended postconviction petition, where defendant's claim of ineffective assistance of trial counsel failed to make a substantial showing of a constitutional violation. ¶ 2 Following a jury trial, defendant, Joshua E. Smith, was found guilty of criminal sexual assault (720 ILCS 5/12-13(a)(2) (West 2004)) and having sexual relations within families (720 ILCS 5/11-11(a)(2) (West 2004)). The convictions merged, and defendant was sentenced to the maximum extended-term sentence of 30 years of imprisonment for criminal sexual assault. Defendant filed a direct appeal, and this court affirmed defendant's conviction and sentence. People v. Smith, No. 3-06-0718 (2008) (unpublished order under Supreme Court Rule 23). Defendant filed a pro se postconviction petition. Defendant was appointed postconviction counsel, who filed an amended postconviction petition. The trial court denied the amended petition. On appeal, defendant argues that the trial court erred in denying his amended postconviction petition at the second stage of the proceedings because: (1) the trial court failed to follow proper second-stage procedures by considering evidence outside the postconviction petition and the record; and (2) the petition sufficiently made a substantial showing of constitutional violation to survive a second-stage dismissal. We affirm.

¶ 3 FACTS

¶ 4 In a six-count information, defendant was charged in counts I and II with allegations of sexual offenses against his daughter, and in counts III, IV, V, and VI with allegations of sexual offenses against his mother. On December 16, 2005, defendant's initial appearance took place, and he was appointed a public defender. On May 8, 2006, a pretrial conference took place, during which the State's Attorney indicated that the State was awaiting a reply on its plea offer. Defendant's counsel stated, "I talked to [defendant] already and he told me to hold off." ¶ 5 On May 11, 2006, defendant filed a motion to sever counts I and II, which pertained to the allegations involving his daughter, from counts III, IV, V, and VI, which pertained to the allegations involving his mother. The court noted that there had not been a plea agreement at this point and granted the motion. ¶ 6 On July 12, 2006, the case proceeded to a jury trial on counts III, IV, V, and VI. The court advised defendant of his eligibility for mandatory consecutive sentences. The following colloquy also took place:

"THE COURT: And that would be 4 to 15 each. It would have to be-
[STATE'S ATTORNEY]: Actually 30 because he's extendable because of his priors.
THE COURT: He's extendable because of a prior of a Class One?
[STATE'S ATTORNEY]: Yes.
THE COURT: That doesn't take the bottom line off. It just takes the top line up. 4 to 30. 4 to 30. Not 6 to-You understand that?
[DEFENSE COUNSEL]: Your Honor, I don't believe he's extendable because I believe he was a burglary, not a residential burglary.
[STATE'S ATTORNEY]: No, he has a residential burglary.

* * *
THE COURT: *** [I]f you do have a residential burglary that wasn't elevated, then you would be also eligible for extended terms here, which would be 4 to 30 years. *** That will come at the sentencing phase. You understand that?
THE DEFENDANT: Yes, sir."

¶ 7 Due to an error in the charges being read to the jury, the jury was discharged at defendant's request, and a new jury panel was scheduled for the following morning. Defense counsel reiterated "for admonishments purposes, so [defendant's] aware" that defendant was eligible for an extended term. The parties and the trial court again confirmed, in defendant's presence, that defendant was eligible for an extended term of 4 to 30 years of imprisonment due to defendant's prior residential burglary conviction. The court stated, "if there's some negotiations, you guys might want to talk about that, you know." The court adjourned until 8:30 a.m. the following day. The following day, the jury found defendant guilty of one count of criminal sexual assault and one count of sexual relations within families. ¶ 8 At the sentencing hearing, the State's Attorney indicated that the trial for severed counts I and II was continued for plea negotiations. The plea negotiations in that case were relevant to the State's decision to use the allegations in counts I and II in aggravation in this case. Defense counsel indicated he spoke with defendant and defendant was not "going to plead to anything." Defendant confirmed that he was not pleading guilty to counts I and II. The prosecutors presented testimony of defendant's daughter in aggravation at the sentencing hearing in this case. Defendant's convictions in this case merged into a single conviction for the Class 1 felony of criminal sexual assault, and defendant was sentenced to the maximum extended-term sentence of 30 years of imprisonment. ¶ 9 On March 17, 2009, defendant filed a pro se postconviction petition. On August 26, 2009, the circuit court found that defendant presented a gist of a constitutional claim and appointed counsel to represent defendant. The court continued the matter for a "hearing on all pending proceedings." On July 30, 2010, defense counsel withdrew from representation, and substitute counsel was appointed. On December 16, 2010, the court ordered that "postconviction motions [be] continued." On March 21, 2011, the court set the case for a "status review" on April 21, 2011. ¶ 10 On June 9, 2011, defense counsel filed an amended postconviction petition, alleging in part that defendant's trial counsel was ineffective because he failed to inform defendant that he was eligible for an extended-term sentence and defendant would have accepted a 10-year plea offer if he had been properly informed. Incorporated into the amended petition was defendant's affidavit, in which defendant indicated that had he known of the extended term he would have accepted the State's 10-year plea offer. On July 29, 2011, defense counsel filed a "Notice of Hearing," a copy of which was sent to defendant and the State's Attorney's office. The notice informed the parties that "a hearing on defendant's Amended Petition for Post-Conviction Relief" was scheduled to take place on September 19, 2011. ¶ 11 On August 9, 2011, the State filed an answer to the amended petition, with an affidavit from defense counsel indicating that he did not recall an offer of 10 years of imprisonment to settle all counts, and an affidavit from the prosecutor indicating that she did not extend an offer of 10 years of imprisonment to settle all six counts. Also attached to the State's answer was a January 23, 2006, letter from the State to defense counsel extending a plea offer of consecutive 15- and 10-year terms of imprisonment to settle counts I and V, respectively. ¶ 12 On September 19, 2011, at the hearing on the amended postconviction petition, the court did not specify whether the case was proceeding on a stage-two hearing on the pleadings or stage-three evidentiary hearing. The docket entry for September 19, 2011, indicated the cause was called for "Post Conviction" and that the court heard arguments and testimony by defendant. At the start of the hearing, the court stated, "I'm looking at an amended petition for postconviction relief *** and an answer." ¶ 13 The court noted that paragraphs one through five had been admitted by the State in its answer so that no evidence or argument was required with respect to those paragraphs. The court stated, "So what we're really talking about is those claims [defendant] made in paragraph 6."¹ The State indicated that defendant would have to testify as to the allegations "[u]nless its in an affidavit." Defense counsel confirmed that defendant had made the same assertions in an affidavit but if the court or State wanted to "get it on record right now and put the testimony to the-to the record as to paragraph 6(A)(2), that would be fine with [him]." Defense counsel indicated that the other allegations in paragraph 6 (which are not relevant to this appeal) were "apparent from the record." ¶ 14 The State's Attorney argued that defendant did not show that a 10-year plea agreement was in the record. Defense counsel stated, "Well, that's what the Postconviction Act is for, is for putting on evidence that's outside of the record" and "that's what the testimony would be today if [defendant] was put on the stand." Defendant then testified that his attorney told him that there was an offer from the State "for 10 years" and he told his attorney "no." Defendant rejected the offer because he believed that he could get a better sentence if he went to trial and thought he would possibly be sentenced to probation. Defendant testified that had he known that he was eligible for an extended-term sentence he would have accepted the offer. Defendant indicated that the 10-year offer was to settle all the charges, including those involving his daughter. ¶ 15 Following arguments from the parties, the trial court stated:

"I find that the petitioner defendant has failed to carry his burden and that those charges are denied, slash, dismissed. I find that there's adequate showing in the record that he was
advised of the extensions. *** [I]n this case he was advised at least twice that these
charges were extendable."

The court's written order indicated that evidence was taken, arguments were heard, and the court "denied" defendant's amended petition for postconviction relief. Defendant appealed.

1 Relevant to this appeal, paragraph 6(A)(2) alleged that defendant's constitutional rights were violated by the ineffective assistance of his trial counsel for "[f]ailing to advise [defendant] that he was eligible for an extended term; [defendant] asserts that an offer for ten (10) years Department of Corrections was made and that he would not have rejected said offer had he known that he was extendable."

¶ 16 ANALYSIS

¶ 17 On appeal, defendant argues that the trial court erred in denying his amended postconviction petition at the second stage of the proceedings because: (1) the trial court failed to follow proper second-stage procedures by considering evidence outside the postconviction petition and the record; and (2) the petition sufficiently made a substantial showing of constitutional violation to survive a second-stage dismissal. The State contends that defendant's petition was denied after a proper third-stage evidentiary hearing. We agree with the State's contention. ¶ 18 The Post-Conviction Hearing Act (Act) provides a mechanism by which individuals under a criminal sentence can assert that they were convicted as a result of a substantial violation of their constitutional rights. 725 ILCS 5/122-1 et seq. (West 2008). Postconviction proceedings are commenced by the filing of a petition, which must clearly allege how the petitioner's rights were violated. 725 ILCS 5/122-2 (West 2008). ¶ 19 The Act provides for a three-stage review process of the petition. 725 ILCS 5/122-1 et seq. (West 2008); People v. Hodges, 234 Ill. 2d 1 (2009). At the first stage, a postconviction petition may be summarily dismissed if the claims in the petition are frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2008). If the petition survives the first stage, an attorney is appointed to assist the petitioner if the petitioner is indigent and requests an attorney. ¶ 20 At the second stage, the State has the option of filing an answer or a motion to dismiss the petition. 725 ILCS 5/122-5 (West 2008). A dismissal of a postconviction petition is warranted only when the petition's allegations, which should be liberally construed in favor of the petitioner and in light of the original trial record, fail to make a substantial showing of a constitutional violation. People v. Coleman, 183 Ill. 2d 366 (1998); People v. Kitchen, 189 Ill. 2d 424 (1999). In making that determination, all well-pleaded facts in the petition are to be taken as true. Kitchen, 189 Ill. 2d 424. ¶ 21 If the allegations contained in the petition are based upon matters of record, then no extrinsic evidence may be required, and a nonmeritorious postconviction petition may be properly dismissed. Id. However, when a petitioner's claims are based upon matters outside the record, it is not the intent of the Act that those claims be adjudicated on the pleadings. Id. Factual disputes should be resolved at a hearing before the court where substantial constitutional questions are raised. Id. At a third-stage evidentiary hearing, the court may receive proof by affidavits, depositions, oral testimony, or other evidence. 725 ILCS 5/122-6 (West 2008).

¶ 22 A. Dismissal of the Petition at the Second Stage of the Proceedings

¶ 23 1. Due Process

¶ 24 In this case, defendant cites People v. Bounds, 182 Ill. 2d 1 (1998) and Kitchen, 189 Ill. 2d 424, in support of his assertion that he was deprived of due process where the court conducted a flawed second-stage hearing and he was not given proper notice that the court would hear evidence, resolve factual disputes, and rule on the merits of the amended petition. In Bounds, the Illinois Supreme Court reversed the dismissal of the postconviction petition because the dismissal took place on a date the case was set for a status hearing. Bounds, 182 Ill. 2d 1. On the date of the status hearing, the circuit court granted the State's motion to dismiss the postconviction petition without argument. Id. The supreme court reversed the dismissal, reasoning that defendant was deprived of procedural due process where the circuit court converted the status call into a hearing on the merits without notice to the parties. Id. ¶ 25 In Kitchen, the Illinois Supreme Court addressed defendant's challenge to the "manner in which the circuit court heard and ruled upon his petition." Kitchen, 189 Ill. 2d at 434. The supreme court vacated the circuit court's order denying postconviction relief because defendant went to court prepared for a proceeding regarding defendant's discovery request only to be surprised when the trial court reached the merits of the petition and denied all postconviction relief. Id. The supreme court noted, "[t]he decision to deny the petition was made without notice to the parties and without the benefit of argument from either defendant or the State." Id. at 435. ¶ 26 Unlike the petitioners in Bounds and Kitchen, defendant in this case had proper notice that a hearing on the merits was taking place on September 19, 2011. Defendant's own counsel provided the notice. On September 19, 2011, the matter was before the court for a resolution on the merits in light of the State's answer. Defense counsel did not object to the hearing, request a continuance or indicate that he was unprepared for a ruling on the merits. The record shows that defense counsel made appropriate arguments and volunteered to have defendant testify. Unlike the petitioners in Bounds and Kitchen, defendant was on notice that a hearing on the merits of his petition was taking place on September 19, 2011, and the circuit court had the benefit of argument from both parties before ruling. Based on this record, defendant's due process rights were not violated by the proceedings.

¶ 27 2. Sufficiency of the Petition

¶ 28 A dismissal on the pleadings at the second stage was proper because defendant's petition failed to make a substantial showing of a constitutional violation. Appellate review of a trial court's dismissal of a postconviction petition without an evidentiary hearing is de novo. Coleman, 183 Ill. 2d 366. We review the trial court's judgment, not the reasons cited, and we may affirm on any basis supported by the record if the judgment is correct. People v. Lee, 344 Ill. App. 3d 851 (2003). ¶ 29 In the petition, defendant contended that he was denied effective assistance of trial counsel because his attorney failed to advise him he was eligible for an extended term and defendant would have accepted a 10-year plea offer had he known he was extended-term eligible. To prevail on a claim of ineffective assistance of counsel, defendant must establish that: (1) counsel's performance was so deficient that it fell below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668 (1984); People v. Albanese, 104 Ill. 2d 504 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. People v. Haynes, 192 Ill. 2d 437 (2000). ¶ 30 Here, the allegations in defendant's petition were contradicted by the record. We agree with defendant that the record shows that his counsel's performance during the plea negotiations was likely deficient, in that his counsel was unsure of whether defendant was eligible for an extended-term sentence until the day prior to trial. Nonetheless, the record contradicts defendant's assertion that he was prejudiced by the deficient performance. ¶ 31 The record indicates that defendant was informed of his extended-term eligibility on the eve of trial, with the court specifically instructing defendant's counsel to discuss defendant's eligibility for an extended-term and consecutive sentences "if there's some negotiations." At that point, defendant had the opportunity to discuss the alleged 10-year plea offer with his counsel in light of his knowledge of the extended-term sentencing. Despite prompting by the trial court, there is no indication in the record or allegations in the petition that defendant expressed any desire to pursue the alleged plea deal. Therefore, based on this record, defendant's petition did not sufficiently allege that there was a reasonable probability that but for counsel's deficient performance the result of the proceeding would have been different.

¶ 32 B. Denial of the Petition at Third Stage of the Proceedings

¶ 33 Although a dismissal on pleadings was proper because defendant's allegations were contradicted by the record, the circuit court also heard defendant's testimony upon defendant's counsel volunteering his testimony. Therefore, although not warranted by the allegations in the petition, defendant received an evidentiary hearing. See 725 ILCS 5/122-6 (West 2008) (at an evidentiary hearing the trial court may receive proof by affidavits, depositions, oral testimony, or other evidence). At the evidentiary hearing, the burden was on the defendant to make a substantial showing of a deprivation of constitutional rights, and we will not disturb the circuit court's decision unless it was manifestly erroneous. People v. Coleman, 206 Ill. 2d 261 (2002). Manifest error is error that is clearly evident, plain, and indisputable. Id. ¶ 34 Here, the affidavit of the prosecutor indicated that a 10-year offer to settle the case was never extended to defendant. Additionally, the prosecutor's letter attached to the State's answer indicated that a plea offer of consecutive sentences totaling 25 years of imprisonment for count I and V was proffered prior to the six counts being severed. Thus, the State's evidence contradicted defendant's testimony that a 10-year plea offer was proffered to settle all six counts. Furthermore, the affidavit of defendant's trial counsel indicated that he did not recall whether a 10-year plea offer was extended to defendant. Based upon the evidence presented, we cannot say that the trial court's finding that defendant failed to carry his burden of proving a substantial constitutional violation was manifestly erroneous in that it is not clearly evident, plain, and indisputable that a 10-year plea offer existed. ¶ 35 Even if the circuit court had found that a 10-year plea offer had been extended by the State, defendant failed to show that he was prejudiced by the delay in being informed of the extended term. There was no evidence indicating that after defendant was informed of the extended term on the eve of trial that he expressed any desire to accept the alleged 10-year plea offer, or that the State withdrew the alleged 10-year plea offer prior to defendant being informed of the extended sentence. In light of the clear indication in the record that defendant knew prior to trial that he was eligible for an extended-term sentence, defendant failed to carry his burden of proving a substantial violation of his constitutional rights. Therefore, the circuit court did not err in denying defendant's amended postconviction petition.

¶ 36 CONCLUSION

¶ 37 We affirm the judgment of the circuit court of Rock Island County. ¶ 38 Affirmed.