Opinion
4-23-0583
06-11-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DINO M. BASSETT, 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 Rock Island County No. 08CF275 Honorable Frank R. Fuhr, Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court. Justices DeArmond and Turner concurred in the judgment.
ORDER
ZENOFF, JUSTICE
¶ 1 Held: The appellate court granted appellate counsel's motion to withdraw and affirmed the trial court's judgment, concluding no meritorious issue could be raised on appeal.
¶ 2 In August 2009, a jury found defendant, Dino M. Bassett, guilty of two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2008)) and one count of aggravated criminal sexual abuse (id. § 12-16(c)(2)(i)). The trial court sentenced defendant to 67 years' imprisonment, followed by 3 years' mandatory supervised release (MSR). Defendant's convictions and sentences were affirmed on direct appeal.
¶ 3 In February 2013, defendant filed a pro se petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)). The trial court dismissed defendant's petition and denied his motion to reconsider. Defendant appealed, and counsel was appointed to represent him. Appellate counsel now seeks to withdraw, contending any argument she might make would be meritless. Defendant has filed a response, disagreeing with counsel's assessment of his case and requesting new appellate counsel or, alternatively, to proceed pro se. We grant counsel's motion to withdraw and affirm the court's judgment.
¶ 4 I. BACKGROUND
¶ 5 A. Defendant's Charges and Pretrial DNA Sample
¶ 6 In March 2008, the State charged defendant by information with four counts of predatory criminal sexual assault of a child and two counts of aggravated criminal sexual abuse, stemming from his alleged acts against a minor, K.C. In November 2008, the State filed a motion for defendant to submit to a buccal swab for comparison of his DNA with that collected through K.C.'s vaginal swab. Defendant objected on the ground his DNA was already available to the State from a previous conviction. However, the Morton crime lab required a new DNA sample. The trial court ordered defendant to submit to a buccal swab. In July 2009, defendant filed a motion to exclude DNA evidence. Defendant argued that since his DNA was already available to the State, the new sample was "unlawfully obtained." The court denied defendant's motion.
¶ 7 B. Defendant's Convictions and Sentences
¶ 8 In August 2009, the jury convicted defendant of two counts of predatory criminal sexual assault of a child and one count of aggravated criminal sexual abuse. In October 2009, the trial court sentenced defendant to two terms of 30 years' imprisonment on the predatory criminal sexual assault convictions and a term of 7 years' imprisonment on the aggravated criminal sexual abuse conviction, all to run consecutively, followed by 3 years' MSR. On direct appeal, the Third District granted appellate counsel's motion to withdraw and affirmed the judgment. People v. Bassett, No. 3-12-0569 (2013) (unpublished order under Illinois Supreme Court Rule 23).
¶ 9 C. Defendant's Petition for Relief From Judgment
¶ 10 In February 2013, defendant filed a section 2-1401 petition for relief from judgment (735 ILCS 5/2-1401 (West 2012)). In it, defendant argued the trial court violated section 5-4-3 of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-4-3 (West 2008)) by ordering him to provide another DNA sample. Defendant also asserted that, in People v. Marshall, 242 Ill.2d 285, 950 N.E.2d 668 (2011), our supreme court rejected the requirement of "multiple and duplicative samples from an offender who has already satisfied the statute by submitting DNA samples pursuant to a prior conviction."
¶ 11 In October 2016, the State filed a motion to dismiss defendant's petition. The State contended both the statute on which defendant relied and the supreme court's holding in Marshall applied to providing a DNA sample after a defendant is convicted of a sexual offense and not to providing one prior to trial for comparison purposes. Later that month, defendant filed a "Motion for Clarification of Appointed Counsel's Duties and Motion to Consider Dismissing 2-1401 Attorney and Being Allowed to Proceed Pro Se with 2-1401 Petition" (Motion for Clarification). Defendant alleged the State relied on "perjured testimony" when it told the trial court his previous DNA sample was not usable. Defendant also alleged there was "no such record" of the crime lab advising the State it needed a new DNA sample.
¶ 12 The trial court held a hearing on defendant's petition later that month. Attorney Nate Nieman represented defendant. Nieman advised he was not going to amend the petition because he "can't think of any way to amend it that would make it more cogent." The State argued defendant was "turning the Marshall case on its head" and was "just plain wrong" in his argument for its application. The court agreed and granted the State's motion to dismiss. The court discharged Nieman from further representation on defendant's petition (though he remained appointed for defendant's postconviction petition).
¶ 13 D. Defendant's Motion to Reconsider
¶ 14 In November 2016, defendant filed a motion to reconsider the dismissal of his petition. Defendant again argued the trial court violated section 5-4-3 of the Unified Code and Marshall in ordering him to submit another DNA sample. Defendant again argued the State relied on "perjured testimony" when it told the court his previous DNA sample was not usable.
¶ 15 The following month, the trial court appointed Clark Miljush to represent defendant. In August 2017, Miljush moved to withdraw, stating he "determined he is unable to assist *** defendant with his petition." The court allowed Miljush to withdraw and appointed William Breedlove to represent defendant. In February 2019, the court allowed Breedlove to withdraw and appointed JohnPatrick Brown as defendant's counsel. In June 2019, Brown moved to withdraw. Brown explained it was "unclear" whether defendant alleged any facts previously unknown to the court which would potentially warrant relief from judgment. Brown maintained Marshall "does not say anything about swabs taken before trial, rather than after trial" (emphases in original) and thus does not stand for the proposition that "a conviction based on a swab taken before trial is void." Brown also noted the buccal swab was permissible under Illinois Supreme Court Rule 413(a)(vii) (eff. July 1, 1982). Brown concluded there were "no good-faith grounds to proceed" with the petition. (The court granted Brown's motion to withdraw in December 2020.)
¶ 16 The State filed a response to defendant's motion to reconsider in February 2020. The State contended defendant did not allege any new facts potentially warranting relief from judgment and could not relitigate previously rejected arguments in a section 2-1401 petition. The State maintained neither section 5-4-3 of the Unified Code nor Marshall required the reversal of defendant's convictions. Finally, the State asserted there was "no merit" to defendant's claim of the buccal swab resulting from "perjured testimony," as the State reported what the crime lab advised about needing a new DNA sample. In July 2021, defendant filed a "Motion in Response" to the State's response, reiterating his previous arguments. Defendant attached a "Conversation Record" written at the crime lab summarizing an exchange between the lab and the State in which the former advised it needed a new DNA sample.
¶ 17 The trial court began a hearing on defendant's motion to reconsider in August 2021. The court denied the motion, but it retracted its denial when defendant said he did not have any of his materials with him due to a lockdown at the prison. The court resumed the hearing in February 2022. Defendant explained he filed an "Amended Motion in Response" to the State's response to his motion, reflecting no changes except the addition of case law citations. Defendant said he was again unable to access his materials. The court again continued the hearing.
¶ 18 The trial court resumed the hearing in June 2023. At the start of the hearing, defendant said the prison was again on lockdown. Accordingly, defendant had "nothing to defend with" at the hearing. The court said it took the motion under advisement, reviewed all the documents defendant filed, and was denying his motion. In response to defendant's request to argue his motion, the court said, "I've determined that there is really nothing you are going to be able to add to it that's going to change my mind."
¶ 19 This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 Appellate counsel moves for leave to withdraw. Counsel supports her motion with a memorandum of law stating she considered raising the following issues on defendant's behalf: (1) whether the trial court properly denied defendant's section 2-1401 petition where it failed to state a meritorious claim, (2) whether the court complied with the rules of civil practice when dismissing defendant's petition and denying his motion to reconsider, and (3) whether any of defendant's appointed attorneys lacked due diligence. Counsel's memorandum explains why she concluded none of those issues have arguable merit. Defendant filed a response requesting new appellate counsel or, in the alternative, to proceed pro se.
¶ 22 Defendant's request is improper, as it fails to comply with Illinois Supreme Court Rule 361(a) (eff. Feb. 1, 2023), which requires an application for other relief to be made by filing a motion. Even assuming, arguendo, defendant's request complied with the procedural rules, we would nevertheless reject it. First, defendant has no right to choose his court-appointed counsel. See People v. Abernathy, 399 Ill.App.3d 420, 426, 926 N.E.2d 435, 441 (2010) (holding a criminal defendant has no right to choose his court-appointed counsel). Second, allowing his request to proceed pro se would be futile, as we agree with counsel the issues identified lack arguable merit, and we have identified no other issues of arguable merit.
¶ 23 A. Denial of Defendant's Section 2-1401 Petition
¶ 24 Section 2-1401 of the Code allows relief from final judgments more than 30 days after their entry. 735 ILCS 5/2-1401 (West 2012). The purpose of a section 2-1401 petition is to apprise the trial court of facts which would have precluded the entry of judgment had they been known at that time. In re Detention of Morris, 362 Ill.App.3d 321, 322, 840 N.E.2d 731, 733 (2005). "Relief under section 2-1401 is predicated upon proof, by a preponderance of [the] evidence, of a defense or claim that would have precluded entry of the judgment in the original action and diligence in both discovering the defense or claim and presenting the petition." People v. Vincent, 226 Ill.2d 1, 7-8, 871 N.E.2d 17, 22 (2007). A reviewing court will not disturb a trial court's decision on a section 2-1401 petition absent an abuse of discretion. Smith v. Airoom, Inc., 114 Ill.2d 209, 221, 499 N.E.2d 1381, 1386 (1986). An abuse of discretion occurs when no reasonable person would take the view adopted by the trial court. Dowd v. Berndtson, 2012 IL App (1st) 122376, ¶ 24, 983 N.E.2d 34.
¶ 25 Here, defendant is using a section 2-1401 petition to relitigate the requirement he provide another DNA sample. Before trial, the trial court considered and rejected defendant's argument. Defendant advances no new facts in his petition which would potentially warrant relief from judgment.
¶ 26 Moreover, neither section 5-4-3 of the Unified Code nor the supreme court's decision in Marshall supports the proposition the trial court improperly required defendant to submit to a buccal swab. Section 5-4-3(a)(1) provides, in pertinent part, the following:
"(a) Any person *** convicted or found guilty of any *** offense requiring registration under the Sex Offender Registration Act *** shall *** be required to submit specimens of blood, saliva, or tissue to the Illinois State Police ***, provided such person is:
(1) convicted of a qualifying offense or attempt of a qualifying offense on or after July 1, 1990 and sentenced to a term of imprisonment." 730 ILCS 5/5-4-3(a)(1) (West 2008).
Notably, this provision applies after a defendant's conviction, not prior to trial. Thus, defendant's argument the court required him to submit to a swab prior to trial in violation of this provision is unavailing.
¶ 27 Further, Marshall does not support defendant's argument he should not have been required to provide another DNA sample. In Marshall, the supreme court considered whether section 5-4-3 authorized a court to order a defendant to provide a DNA sample to the DNA database after already doing so following a previous conviction. Marshall, 242 Ill.2d at 287-88.
The court concluded it did not. The court explained:
"A one-time submission into the police DNA database is sufficient to satisfy the purpose of the statute in creating a database of the genetic identities of recidivist criminal offenders, because once an offender's DNA data is stored in the database, it remains there unless and until the offender's conviction is reversed based on a finding of actual innocence or he is pardoned based on a finding of actual innocence. [Citation.]" Id. at 296.
The court continued, in a passage defendant echoed in his petition:
"[T]he regulations implementing section 5-4-3 show an intent to require a single specimen of DNA be taken from each qualified person to create a profile for entry into the DNA database maintained by the Illinois Department of State Police, rather than an intent to require submission of multiple and duplicative DNA samples from an offender who has already submitted samples pursuant to a prior conviction." Id. at 297.
¶ 28 In Marshall, the court did not address a trial court ordering a defendant to submit a DNA sample prior to trial for comparison purposes. Rather, Marshall addressed the proper protocol to obtain DNA samples for a police database after a defendant has been convicted of a sexual crime. Thus, defendant's argument the court ran afoul of Marshall by requiring him to submit to a buccal swab prior to trial fails.
¶ 29 Moreover, personnel at the crime lab advised the State they needed a new DNA sample. The trial court appropriately required one under Rule 413(a)(vii), which permits a court, "subject to constitutional limitations," to require a defendant to "permit the taking of samples of his blood, hair and other materials of his body which involve no unreasonable intrusion thereof." Ill. S.Ct. R. 413(a)(vii) (eff. July 1, 1982).
¶ 30 In sum, the trial court's dismissal of defendant's section 2-1401 petition was not an abuse of discretion. As such, we agree with appellate counsel that any argument to the contrary would lack arguable merit.
¶ 31 B. The Trial Court's Compliance With the Rules of Civil Practice
¶ 32 While a trial court's dismissal of a section 2-1401 petition is reviewed for an abuse of discretion, the question of whether the trial court followed the proper procedure in dismissing the petition is reviewed de novo. People v. Coleman, 358 Ill.App.3d 1063, 1067, 835 N.E.2d 387, 390 (2005).
¶ 33 Our supreme court "has consistently held that proceedings under section 2-1401 are subject to the usual rules of civil practice." Vincent, 226 Ill.2d at 8. In this sense, "basic notions of fairness dictate that a petitioner be afforded notice of, and a meaningful opportunity to respond to, any motion or responsive pleading by the State." People v. Stoecker, 2020 IL 124807, ¶ 20, 181 N.E.3d 201.
¶ 34 Here, defendant filed a Motion for Clarification presenting arguments responsive to the State's motion to dismiss his petition. Additionally, defendant filed a "Motion in Response" to the State's response to his motion to reconsider the dismissal of his petition. Later, defendant filed an "Amended Motion in Response," supplementing the initial motion with case law citations. Even though neither defendant's section 2-1401 petition nor his motion to reconsider had merit, the trial court continued the hearing on his motion twice due to his inability to access his materials. Although the court did not entertain argument from defendant on his motion before finally denying it, the court said it had taken it under advisement and considered all the supporting documents. After several years of litigation of a meritless petition, the court amply satisfied the requirements of basic notions of fairness. Id. We therefore agree with appellate counsel that an argument to the contrary lacks arguable merit.
¶ 35 C. Appointed Counsel's Due Diligence
¶ 36 A defendant has neither a constitutional nor a statutory right to the assistance of counsel for a section 2-1401 petition. Id. ¶¶ 35-36. But a trial court may appoint counsel for this purpose. Id. ¶ 36. Appointed counsel must provide the same due diligence as otherwise ethically required. Id. ¶ 42. Accordingly, "to that end, counsel has an obligation, to the best of his or her legal ability, to make a cogent argument" in support of a petition "and to overcome any procedural hurdles where it can legally and ethically be done." Id. Counsel's obligation may include amending a petition or withdrawing as counsel. Id. ¶ 43. "Nevertheless, a claim of lack of due diligence sufficient to warrant remand depends on an arguably meritorious claim." Id.
¶ 37 Here, Nieman told the trial court he could not "think of any way to amend [the petition] that would make it more cogent." The court granted the State's motion to dismiss and discharged Nieman from further representation on the petition. Later, the court allowed Miljush to withdraw after he "determined he [was] unable to assist *** defendant with his petition." Thereafter, the court allowed Breedlove to withdraw. Finally, the court allowed Brown to withdraw after he noted Marshall "does not say anything about swabs taken before trial, rather than after trial" (emphases in original) and thus does not stand for the proposition that "a conviction based on a swab taken before trial is void." Given the lack of merit in defendant's petition, the crime lab's need for a new DNA sample, and the court's authority under Rule 413(a)(vii) to order one, he had no arguably meritorious claim to which he could connect a lack of due diligence claim. Stoecker, 2020 IL 124807, ¶ 43. We therefore agree with appellate counsel that the issue lacks arguable merit.
¶ 38 III. CONCLUSION
¶ 39 For the reasons stated, we grant appellate counsel's motion to withdraw and affirm the trial court's judgment.
¶ 40 Affirmed.