Opinion
No. 1-15-3028
05-23-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM ANDERSON, 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. 08 CR 182 Honorable Domenica A. Stephenson, Judge, presiding. JUSTICE FITZGERALD SMITH delivered the judgment of the court.
Justices Howse and Lavin concurred in the judgment.
ORDER
¶ 1 Held: Summary dismissal of defendant's postconviction petition affirmed over his claims of ineffective assistance of appellate counsel. ¶ 2 Defendant William Anderson appeals the summary dismissal of his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). He contends that the trial court erroneously dismissed his petition where he made an arguably 2 meritorious claim that appellate counsel was ineffective for failing to challenge his 45-year sentence. For the following reasons, we affirm. ¶ 3 Following a jury trial, defendant was convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West 2006)), for his participation in shooting the victim, Derrick Smith, and sentenced to 45 years' imprisonment. According to the State's theory of the case, codefendant Bennie Casey shot Derrick in retaliation for a prior incident involving Casey and one of Derrick's fellow gang members, and defendant was accountable because he assisted in the crime. ¶ 4 Prior to trial, the State offered defendant a plea bargain for 23-years' imprisonment. The record shows that the case was continued several times for defendant to consider the State's offer. After two weeks, defendant requested a 22-year plea. The State agreed, but defendant then requested another week to consider the 22-year plea. The court found he was rejecting the offer. Defendant verified he understood that, if he did not take the plea that day, it would be "gone," and reiterated that he wanted a week to consider it. The court told him, "We are not going to go another week, it's silly at this point. You had weeks to think about 23, you didn't want 23, you threw them a counter-offer of 22, they said ok, 22. So it is your offer to them basically not their offer to you." The case proceeded to trial. ¶ 5 The following summarizes the evidence of defendant's guilt. At around 1 a.m. on November 18, 2007, Derrick and his twin brother, Erick, were on the second floor of a building on West Washington (the building), which was part of the Chicago Housing Authority and 3 known for crime and gang activity. The brothers were smoking marijuana, and Derrick was selling "rock cocaine." Around 5:30 a.m., Erick and Derrick went to leave the building. Erick encountered defendant and Casey on the ground floor. Casey grabbed his collar and told him to leave. Casey then pointed a Tech 9 semi-automatic pistol at Erick. Erick exited the building, but returned after realizing Derrick was still inside. When he returned to the building, Erick saw Casey shoot Derrick. Defendant was standing next to Casey unarmed. Erick ran from the building, and defendant followed him. Defendant pointed at Erick, and ran into a pole. Casey also ran after Erick, and pointed his gun and threatened him. ¶ 6 Tongula Ayers, an admitted heroin addict and prostitute, bought narcotics from Derrick shortly before his death. After purchasing the narcotics, Tongula proceeded to the ground floor of the building to meet her friend, Shanice Wright. Wright, who was also an admitted crack cocaine and heroin addict on the date in question, was waiting for Ayers on the ground floor. There, Wright and Ayers encountered defendant and Casey. Wright testified that both defendant and Casey had guns. Defendant pointed a gun at her and instructed her to be quiet and leave. Ayers testified that both defendant and Casey had guns and told the women to leave. Ayers and Wright exited the building, and Wright left the scene. ¶ 7 Outside, Ayers waited in the parking lot to retrieve her bicycle from inside the building. She observed Erick exit and then return to the building. Following a single gunshot, defendant and Casey ran out of the building holding the guns. Erick came out of the building and said "they shot my brother, they shot my brother." Ayers rode her bike to a nearby fire station to get help. ¶ 8 Alfonzina Wright bought crack cocaine from Derrick in the building shortly before he was shot. After the transaction, she went to the third floor of the building. She heard one gunshot 4 and someone yelling "they killed my brother, they killed my brother." Alfonzina then went downstairs, where she saw Derrick on the floor with Erick sitting next to him. Erick struggled to make a 911 call, so Alfonzina spoke with the operator. She then fled the building. ¶ 9 Chicago police sergeant Daniel Gallagher testified that he interviewed Erick, Ayers, and Shanice Wright. Each witness identified defendant and Casey in photographic arrays as the men in the building on the night Derrick was shot. Defendant and Casey were subsequently arrested. Following their arrests, each of the witnesses identified defendant and Casey in physical lineups. ¶ 10 Sergeant Michael Kelly testified that he arrested and interviewed defendant. During the interview, defendant initially denied involvement in Derrick's murder. Eventually, defendant admitted that Casey had been in a fight at the building the day before the shooting with a rival gang member named "Rooster." Defendant further admitted that he went with Casey to the building to start a fight with either Rooster or, if they could not find Rooster, anyone from his gang. Defendant was going to be Casey's lookout, but did not intend to kill anyone. Defendant denied having a gun, and did not see Casey with one. ¶ 11 The jury found defendant guilty of first degree murder. Defendant filed a posttrial motion for a new trial, which the court denied. ¶ 12 At defendant's sentencing hearing, Derrick Smith's mother read a victim impact statement. In aggravation, the State argued the following. Defendant's presentence investigation report (PSI) showed defendant characterized his childhood as "perfect." Yet, despite coming from a loving family, defendant was expelled from his high school and had a history of criminal activity, including several prior convictions for narcotics offenses and a conviction for unlawful use of a weapon by a felon (UUWF). Defendant had received probation multiple times but 5 continued to reoffend, and was sentenced to three years' imprisonment for his UUWF conviction. While out on mandatory supervised release for that offense, defendant committed the murder in the instant case. The State argued the evidence showed that defendant, although not the shooter, went to the building with a weapon to help Casey fight someone in retaliation for a previous fight, indicating premeditation. Further, once on the scene, defendant pointed a weapon at the witnesses present. ¶ 13 In mitigation, defendant's mother, Marie Scott, testified that defendant was a good son and helped her pay bills when his father lost his job. Defendant's sister, Lakeyta Scott, echoed Marie Scott's testimony, and added that defendant's nephew looked up to him. ¶ 14 Defense counsel argued in mitigation that defendant did not have a violent background, despite his criminal history. Defendant grew up in a "tough area," which led to him being expelled from school. Counsel emphasized that defendant did not "lead[] the charge in this case," and was "not the one who pulled the trigger." Further, defendant was previously employed and had been taking classes while incarcerated. ¶ 15 The court sentenced defendant to 45 years' imprisonment. In imposing sentence, the court stated that "[n]o one forced [defendant] to go along with Casey on the night they shot [Derrick]. He chose to go along to be the back-up, muscle, look-out, whatever he chose to go with him for. The fact that he didn't fire the gun himself, he was more than willing that it happened. *** He chose to go out and help Casey murder a guy." ¶ 16 The court found defendant's "very nice," "supportive, loving" family was "mitigating to some extent," but did not mitigate 6 "the fact that [defendant] chose to kill the guy for really no reason whatsoever, albeit that Derrick Smith may have been in the building with the other guys who beat up Casey the day before ***. Derrick Smith wasn't even out there the day before. He wasn't part of the incident the day before at all." ¶ 17 The court stated that defendant was a "willing accomplice" and had been on parole for only four months for a prior weapons violation when he committed the instant offense, and listed defendant's four prior convictions for narcotics offenses and UUWF. The court stated, "The court has considered the fact that [defendant] is an accomplice, did not actually shoot the victim, but that is really not mitigating much at all because he was willing for the crime to occur. It just happens that Casey happened to shoot the guy, that's all. It was Casey's beef to start off with, but he ably assisted that beef Anderson [sic] had with the guy, not even with the guy, who whoever happened to be in that building at that time." ¶ 18 Defendant filed a motion to reconsider sentence, which the trial court denied. The court reiterated that defendant's PSI showed he was on parole at the time of the murder, and that he assisted Casey in the shooting by going along to exact "some form of revenge" and clearing the witnesses out of the building. Thus, the court concluded, although Casey was the shooter, the evidence showed defendant participated and was "more than just there" at the scene. ¶ 19 On direct appeal, defendant alleged that the trial court abused its discretion by refusing the defense's tendered non-Illinois Pattern Instructions jury instructions regarding witness 7 credibility of drug addicts. We affirmed defendant's conviction on direct appeal. People v. Anderson, 2013 IL App (1st) 102852-U (unpublished order pursuant to Supreme Court Rule 23). ¶ 20 On May 5, 2015, defendant filed a pro se postconviction petition under the Act. In his petition, defendant alleged, as relevant here, that appellate counsel was ineffective for failing to challenge defendant's 45-year sentence on direct appeal. Defendant argued that his sentence was excessive because he was convicted under an accountability theory, did not have a violent background, and previously satisfactorily completed his probation. ¶ 21 In support of his petition, defendant attached, inter alia, a letter from appellate counsel explaining why counsel did not raise various issues requested by defendant. With regard to the sentencing issue, counsel wrote, "You stated that you wanted me to raise the issue that your sentence was excessive considering you were only accountable for this crime. However, I determined that the judge properly weighed the statutory aggravated and mitigating factors, such that any sentencing issue would be without merit." ¶ 22 On July 31, 2015, the trial court entered an order summarily dismissing defendant's postconviction petition. This appeal followed. ¶ 23 On appeal, defendant maintains the trial court erred in dismissing his petition because he set forth an arguably meritorious claim of ineffective assistance of appellate counsel for failure to 8 challenge his 45-year sentence on direct appeal, thereby warranting further proceedings under the Act. ¶ 24 The Act permits criminal defendants to challenge their convictions or sentences on grounds of constitutional violations. People v. Beaman, 229 Ill. 2d 56, 71 (2008). During first stage postconviction proceedings, the trial court must independently review the petition, taking the allegations as true, and determine whether the petition is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2014). A petition 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 (2009); People v. Tate, 2012 IL 112214, ¶ 9. A claim lacks an arguable basis when it is based on an indisputably meritless legal theory, such as one completely contradicted by the record, or a fanciful factual allegation, such as those that are fantastic or delusional. People v. Brown, 236 Ill. 2d 175, 185 (2010). ¶ 25 In the first stage of proceedings, a petition need only present the gist of a constitutional claim to survive. People v. Allen, 2015 IL 113135, ¶ 24. Presenting a "gist" of a constitutional claim is a low threshold, and only limited detail is necessary for the petition to proceed beyond the first stage of postconviction review, as opposed to setting forth a claim in its entirety. Hodges, 234 Ill. 2d at 9; People v. Williams, 364 Ill. App. 3d 1017, 1022 (2006). The defendant need only "allege enough facts to make out a claim that is arguably constitutional for purposes of invoking the Act." Hodges, 234 Ill. 2d at 9. We review the summary dismissal of a petition de novo. Id. ¶ 26 The constitutional right to effective assistance of counsel applies to counsel on a direct appeal as of right. Evitts v. Lucey, 469 U.S. 387, 396 (1985). In assessing claims of ineffective 9 assistance of appellate counsel, we use the same test used in assessing claims of ineffective assistance of trial counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Enis, 194 Ill. 2d 361, 377 (2000). ¶ 27 Thus, at the first stage of postconviction proceedings, to state a claim of ineffective assistance of counsel, a defendant must sufficiently allege that 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. Hodges, 234 Ill. 2d at 17 (citing Strickland, 466 U.S. at 687-88). The failure to satisfy either prong will defeat a claim of ineffective assistance. Enis, 194 Ill. 2d at 377. If we can dispose of defendant's ineffective assistance of appellate counsel claim because he suffered no prejudice, we need not address whether his counsel's performance was objectively reasonable. People v. Lacy, 407 Ill. App. 3d 442, 457 (2011). ¶ 28 In general, appellate counsel is afforded substantial deference in deciding which issues to raise on appeal. People v. Rogers, 197 Ill. 2d 216, 223 (2001). Appellate counsel has no obligation to brief every conceivable issue, nor is counsel incompetent for choosing not to raise issues which, in his or her judgment, lack merit, unless that judgment was patently wrong. People v. Smith, 195 Ill. 2d 179, 190 (2000). In order to demonstrate prejudice as a result of counsel's failure to raise a particular issue, a defendant must show that, but for that failure, his conviction or sentence would have been reversed. People v. Flores, 153 Ill. 2d 264, 283 (1992). Where the underlying issue is not meritorious, the defendant has suffered no prejudice from counsel's omission. People v. Foster, 168 Ill. 2d 465, 474 (1995). ¶ 29 In this case, the record demonstrates that appellate counsel considered raising a challenge to defendant's sentence, but ultimately decided that it was without merit. After carefully 10 reviewing the record, we agree with counsel's assessment. We find defendant has failed to make an arguable claim that his sentence would have been reversed had counsel challenged it on appeal, and his claim of ineffective assistance therefore fails under the prejudice prong of Strickland. ¶ 30 We accord great deference to a trial court's sentence and will not reverse it absent an abuse of discretion. People v. Butler, 2013 IL App (1st) 120923, ¶ 30. Defendant's 45-year sentence falls well within the statutory range of 20 to 60 years for first degree murder (730 ILCS 5/5-4.5-20(a)(1) (West 2010)), and we therefore presume it is proper, unless it is manifestly disproportionate to the nature of the offense. See People v. Burton, 2015 IL App (1st) 131600, ¶ 36. ¶ 31 Here, defendant claims that his sentence was excessive because (1) the State initially agreed to offer him a 22-year plea; (2) the trial court "ignored uncontested facts that defendant was accountable for the shooting" and that Casey instigated the offense and shot Derrick Smith; and (3) the court imposed the same 45-year sentence on the "more culpable" shooter. We are unpersuaded by defendant's contentions as the record reveals the court considered the relevant statutory factors in sentencing defendant. Contrary to defendant's assertion, the court did consider that defendant was not the shooter. It stated on the record that it considered defendant's role in the crime, and noted several times that defendant was not the shooter and, instead, acted as the "look-out" and Casey's "muscle." ¶ 32 Moreover, in determining defendant's sentence, the court properly considered the nature of the offense, defendant's PSI and criminal history, and arguments in aggravation and mitigation. See People v. Hernandez, 319 Ill. App. 3d 520, 529 (2001) (In determining an 11 appropriate sentence, the trial court considers such factors as "a defendant's history, character, and rehabilitative potential, along with the seriousness of the offense, the need to protect society, and the need for deterrence and punishment."). In particular, the trial court noted defendant's prior convictions and that he had been out of prison for UUWF only four months prior to committing the offense in the instant case. Based on this, we cannot say that the trial court abused its discretion in imposing a 45-year sentence. Accordingly, there would have been no basis to disturb defendant's sentence on direct appeal. People v. Burke, 164 Ill. App. 3d 889, 902 (1987) (noting that, where the trial court properly considered relevant sentencing factors, it is not the function of a reviewing court to rebalance those factors on appeal). Thus, defendant suffered no arguable prejudice from counsel's failure to challenge his sentence on direct appeal, and has therefore failed to set forth the gist of a constitutional claim of ineffective assistance of appellate counsel. ¶ 33 In reaching this conclusion, we reject defendant's contention that the State's pretrial plea offer renders his sentence excessive. A trial court is not precluded from imposing a harsher sentence on a defendant after trial than was offered by the State during plea negotiations (People v. Foster, 80 Ill. App. 3d 990, 995 (1980)), as long as the court does not punish a defendant for declining a plea and exercising his constitutional right to a trial by imposing a harsher sentence (People v. Ward, 113 Ill. 2d 516, 526 (1986)). Here, defendant does not allege, and there is no indication in the record, that the court's sentence was a punishment for defendant exercising his right to trial. Rather, as noted above, the court considered the relevant sentencing factors in imposing sentence, including facts regarding defendant's criminal history that were introduced by his PSI. Notably, the court mentioned that, while on parole for a previous firearm offense, 12 defendant willingly helped Casey commit a crime against Derrick, who had not been involved in any prior altercations with Casey or defendant. ¶ 34 We likewise reject defendant's contention that his claim was arguably meritorious because he was the less culpable offender yet received the same sentence as Casey, the shooter. We first note that Casey was sentenced after defendant, and Casey's sentence, therefore, was not necessarily known to appellate counsel. But more importantly, defendant appears to ignore the fact that both he and Casey were convicted of first degree murder, albeit under different theories. "The accountability statute *** effectively bars courts from considering the offender's degree of participation in the crime by making all persons who participate in a common criminal design equally responsible. *** Under the accountability statute, defendant was considered equal to the actual shooter." People v. Miller, 202 Ill. 2d 328, 340 (2002) Thus, under the accountability statute, defendant and Casey are equally guilty for the shooting, and the theory under which he was convicted does not render his 45-year sentence excessive. See People v. Fernandez, 2014 IL 115527, ¶ 19 (noting that "where there is a common design to do an unlawful act, then 'whatever act any one of them [does] in furtherance of the common design is the act of all, all are equally guilty of whatever crime was committed' ") (quoting People v. Tarver, 381 Ill. 411, 416 (1942)); see also People v. Velez, 388 Ill. App. 3d 493, 516 (2009) (affirming the trial court's imposition of a 45-year sentence for first degree murder based on an accountability theory despite the defendant's limited role as a lookout). ¶ 35 Accordingly, we find defendant has failed to present the gist of a constitutional violation, where he cannot demonstrate he was arguably prejudiced by appellate counsel's failure to raise a 13 challenge to his sentence on direct appeal. The trial court did not err in dismissing defendant's postconviction petition. ¶ 36 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. ¶ 37 Affirmed.