Opinion
4-22-0808
07-28-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTY BLACKMON, 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 Livingston County No. 04CF169 Honorable Jennifer H. Bauknecht, Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court. Justices Steigmann and Zenoff concurred in the judgment.
ORDER
KNECHT JUSTICE.
¶ 1 Held: The appellate court affirmed the trial court's denial of defendant's motion for leave to file a successive postconviction petition claiming actual innocence, concluding defendant did not meet his burden of showing newly discovered evidence.
¶ 2 In June 2005, defendant, Marty Blackmon, pled guilty but mentally ill to two counts of attempted first degree murder (720 ILCS 5/8-4, 9-1(a)(1) (West 2002)) and two counts of aggravated battery (720 ILCS 5/12-3(a)(1) (West 2002)). The trial court sentenced him to 30 years in prison. In April 2007, defendant filed a postconviction petition alleging his guilty plea was involuntary and his counsel was ineffective. The court dismissed the petition as frivolous and patently without merit, and we affirmed. People v. Blackmon, No. 4-07-0429 (July 15, 2008) (unpublished order under Illinois Supreme Court Rule 23).
¶ 3 In January 2022, defendant filed a motion for leave to file a successive postconviction petition claiming actual innocence. The trial court denied defendant's motion, finding he failed to make a colorable claim of actual innocence. Defendant appeals, and we affirm.
¶ 4 I. BACKGROUND
¶ 5 On August 10, 2004, the State charged defendant by indictment with two counts of attempted first degree murder (720 ILCS 5/8-4, 9-1(a)(1) (West 2002)) and two counts of aggravated battery (720 ILCS 5/12-3(a)(1) (West 2002)) following an August 2003 attack on Allen Robinson, a fellow inmate at the Pontiac Correctional Center in Pontiac, Illinois (Pontiac). Defendant's codefendant, Robert Boyd, was alleged to have also participated in the attack.
¶ 6 On June 6, 2005, defendant pled guilty but mentally ill to all four counts of the indictment. In exchange, the State agreed the latter three counts merged into the first count of attempted murder and defendant's sentence should be capped at 30 years. According to the State's factual basis, defendant and Boyd concocted a scheme wherein they removed pieces of iron from the light fixtures in their cells, used them to dig through a concrete wall to reach Robinson's cell, and then used them to attack Robinson to the point of unconsciousness, causing serious injury.
¶ 7 The trial court found defendant understood the nature of the charges, the possible penalties, and the rights he was waiving. The court found defendant pleaded guilty voluntarily and there was a factual basis for his pleas. However, the court refrained from formally accepting the pleas until after it had a chance to review defendant's psychiatric and presentence investigative reports. Thereafter, the court formally accepted defendant's pleas of guilty but mentally ill as to all four counts.
¶ 8 The trial court held the sentencing hearing on August 15, 2005. After summarizing the June 6, 2005, proceeding, the court noted it received defendant's motion to withdraw his guilty plea filed on July 7, 2005. Defendant denied filing this motion, insisted someone else had filed it on his behalf, denied any knowledge of it until receiving a copy of it, and expressed his desire to withdraw it. The court accordingly struck the motion. The court then sentenced defendant to a 30-year prison term, to run consecutively to his previously imposed sentences.
¶ 9 On December 8, 2005, defendant filed a pro se motion to withdraw his guilty plea, alleging his counsel was ineffective for (1) failing to inform the trial court of alleged perjury by a State witness at the August 2004 grand jury proceedings and (2) coercing defendant into pleading guilty despite the purported absence of a factual basis for his specific intent to murder. On December 12, 2005, the court struck the motion as untimely. Defendant appealed, and the Office of the State Appellate Defender (OSAD) was appointed to represent defendant on appeal. Thereafter, OSAD moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). On March 1, 2007, this court granted OSAD's motion to withdraw, found the trial court properly dismissed defendant's motion as untimely, and dismissed his appeal. People v. Blackmon, No. 4-06-0019 (March 1, 2007) (unpublished order under Illinois Supreme Court Rule 23).
¶ 10 On April 9, 2007, defendant filed a pro se postconviction petition, which he requested be voluntarily dismissed later that day. The trial court formally dismissed defendant's petition on April 19, 2007.
¶ 11 On April 23, 2007, defendant filed a new postconviction petition. Defendant's petition alleged his guilty plea was "involuntary and unintelligently induced" in that the trial court did not admonish him of the three-year period of mandatory supervised release and because he "did not understand the nature of his charges due to his mental health deterioration." Additionally, defendant alleged his counsel was ineffective for, inter alia, not presenting an insanity defense.
¶ 12 On May 10, 2007, the trial court dismissed defendant's petition as frivolous and patently without merit. In doing so, the court found the petition to be "in the nature of a successive petition." Defendant appealed, and this court affirmed the dismissal but found the court erred in characterizing the petition as successive given defendant's voluntary dismissal on April 9, 2007. People v. Blackmon, No. 4-07-0429 (July 15, 2008) (unpublished order under Illinois Supreme Court Rule 23).
¶ 13 On January 31, 2022, defendant filed a motion for leave to file a successive postconviction petition, raising a claim of actual innocence. Specifically, defendant asserted:
"[He] should be allowed a successive postconviction [petition], arguing that [he] is actually innocent of beating and stabbing, resulting in the attempt[ed] murder of Alan [ sic ] Robinson, and the affidavits of [Boyd] and [Christopher Knox,] another person incarcerated (formerly) to corroborate [Boyd's] statement that he alone committed the crime, and coerced [defendant] to go along with his plot, constitute evidence that is newly discovered, material, and noncumulative, and of such a conclusive character as would change the result of any retrial."
¶ 14 In his December 2021 affidavit, Boyd averred the following:
"On or about August 22[,] 2003[,] I broke the bricks out of my wall leading from [Cell] 305 to 304, witch [ sic ] was occupied by inmate Martie [ sic ] Blackmen [ sic ]!
Upon going from my cell 305 into Martie [ sic ] Blackman's [ sic ] cell 304, I Robert Boyd told Martie [ sic ] Blackmen [ sic ] to get out of my way &stay at the front of his cell or I'd kill him.
I Robert Boyd #B51078 then busted a hole in 303 &I told inmate (Robinson) to come fight me in Blackmen's [ sic ] cell 304. I knocke [ sic ] holes from my cell 305, 304, 303 &2 Bricks out of *** 302 later that night.
At no time did Martie [ sic ] Blackmen [ sic ] pick up a pice [ sic ] of steal [ sic ], bracke [ sic ] a light or hit or touch harm or do anything to Mr. Robinson at no time.
I Robert Boyd #B51078 am the only one who hit &beat Mr. Robinson who in [ sic ] August 22, 2003 was housed in 303, and came over to 304 to fight me &I beat &stabbed him sevral [ sic ] times &in the process I broke the light in 304 to get fresh steal [ sic ] to stab Mr. Robinson.
This whole incident took about 2 hours and some how [ sic ] it just came to my knowledge about 5-6 days ago Dec. 9th[,] 2021 upon seeing Martie [ sic ] Blackmen [ sic ] for the 1st time &talking to him that he got 35 [ sic ] years for a crime he had no involvement with. I did it alone all's [ sic ] I did was told [ sic ] Martie [ sic ] Blackmen [ sic ] get out my way or I'd kill him."
¶ 15 Christopher Knox's September 2020 affidavit averred the following:
"On March 7, 2018, I was transferred from Pontiac Correctional Center to Dixon C.C.
On or about March 10, 2018, I was placed on A-wing in X-house, and while on the wing in which Bobby Boyd was also housed, he and I talked about Pontiac. In particular, we talked about the incident that took place on 3 gallery in Pontiac.
He explained, that he and Black [Marty Blackmon], was [ sic ] trying to go through the walls to get to the back-flag. Bobby told me that at some point they realized they couldn't get through all the walls. During this time, Smooth [Allen Robinson] said something to him and he did what he did to him.
Bobby stated, Black came back and stopped him from killing Smooth. Bobby told me, he didn't want to say anything earlier because he didn't want to implicate himself and was trying to get off on the case."
¶ 16 According to defendant, (1) Boyd's affidavit could not have been discovered though the exercise of due diligence as (a) defendant had not seen Boyd in 18 years and (b) Boyd could not have been forced to waive his right against self-incrimination; (2) the information in the affidavit is material; and (3) the affidavit contradicts the State's evidence and exonerates him such that the result of his trial would have been different.
¶ 17 On March 9, 2022, the trial court denied defendant's motion for leave to file a successive postconviction petition, holding, in pertinent part, the following:
"Defendant contends that these affidavits are 'newly discovered evidence' that demonstrate his actual innocence. However, the facts set
forth in Boyd's affidavit were not unknown to defendant at the time of his plea. Defendant knew Boyd was involved in the stabbing of Robinson at the time [defendant] chose to plead guilty. If defendant was actually innocent, he would have known that he did not act with Boyd back in 2005 when he chose to plead guilty. This is not a situation where Boyd refused to testify or otherwise pled the 5th Amendment in connection with defendant's case. There was no trial and Boyd never testified. Further, the most incriminating statements against defendant were not made by Boyd, but were made by the defendant himself. At no point in his successive postconviction petition does defendant explain or recant his detailed statements to IDOC investigators concerning his knowledge and involvement in this incident."
¶ 18 On April 6, 2022, defendant filed a motion to reconsider the March 9, 2022, order as well as an amended successive postconviction petition. The trial court denied defendant's motion to reconsider, finding he was improperly asking the court to "consider for the first time additional evidence not set forth in his original 1st Successive Post-Conviction Petition." The court also denied defendant's motion for leave to amend the successive postconviction petition, finding he "seems to abandon entirely his claim of actual innocence and instead pursues a claim of Equal Protection Clause violations for an allegedly disproportionate sentence."
¶ 19 This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 On appeal, defendant argues the trial court erred in denying his motion for leave to file his successive postconviction petition. Specifically, defendant contends the court erred where (1) Boyd's affidavit is newly discovered evidence, (2) Boyd's affidavit contains "material and non-cumulative" information probative of defendant's innocence and creates new factual questions given the absence of anything in the State's factual basis suggesting Boyd attacked Robinson by himself, and (3) Boyd's affidavit is "of such conclusive character that it would probably produce a different outcome."
¶ 22 Generally, the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2022), permits the filing of only one postconviction petition. People v. Wilson, 2023 IL 127666, ¶ 23. "To file a successive postconviction petition, a defendant must establish either (1) cause for not filing earlier and prejudice or (2) actual innocence." People v. Walker, 2022 IL App (1st) 201151, ¶ 19, 207 N.E.3d 1083. Here, defendant alleges actual innocence.
¶ 23 To set forth a claim of actual innocence:
"[T]he supporting evidence must be (1) newly discovered, (2) material and not cumulative, and (3) of such conclusive character that it would probably change the result on retrial. [Citation.] Newly discovered evidence is evidence that was discovered after trial and that the petitioner could not have discovered earlier through the exercise of due diligence. [Citation.] Evidence is material if it is relevant and probative of the petitioner's innocence. [Citation.] Noncumulative evidence adds to the information that the fact finder heard at trial. [Citation.] Lastly, the conclusive character element refers to evidence that, when considered along with the trial evidence, would probably lead to a different result. [Citation.]" People v. Robinson, 2020 IL 123849, ¶ 47, 181 N.E.3d 37.
¶ 24 Evidence is not "newly discovered" when it "presents facts already known to a defendant at or prior to trial, though the source of these facts may have been unknown, unavailable or uncooperative." (Internal quotation marks omitted.) People v. Snow, 2012 IL App (4th) 110415, ¶ 21, 964 N.E.2d 1139. "[T]he denial of leave to file a successive postconviction petition alleging actual innocence is reviewed de novo." Robinson, 2020 IL 123849, ¶ 40.
¶ 25 As the trial court noted, Boyd's and Knox's affidavits contain facts purporting to reflect defendant's actual innocence, which defendant clearly would already have known when he pleaded guilty in June 2005. Defendant maintains Boyd's affidavit must be considered newly discovered evidence because the affidavit itself could not be procured sooner. Because defendant would have known the information contained in Boyd's affidavit at the time of his plea (i.e., defendant did not commit the offenses), however, it cannot be considered "newly discovered." See People v. Jones, 399 Ill.App.3d 341, 364, 927 N.E.2d 710, 729 (2010) ("An unbroken line of precedent holds that evidence is not newly discovered when it presents facts already known to a defendant at or prior to trial, though the source of those facts may have been unknown, unavailable or uncooperative.").
¶ 26 We note defendant's successive petition argues he was severely mentally ill at the time of the offenses and unable to recall details. Defendant maintains he told a psychiatrist in March 2005 that he had no memory of the incident, and he was going to "agree to whatever they say happened" only to get mental health treatment. However, his psychiatrist's report, which defendant attached to his successive petition, concludes that defendant's judgment was impaired on the date of the offenses, "but not to the extent that he was unable to appreciate the wrongfulness of his behavior." Moreover, it is clear defendant recalled the incident at the time he filed his April 2007 postconviction petition. In that petition, defendant complained of the "insufficiency of [the] indictment for charging [him] with crimes which did not coincide with the evidence [ ]or facts of the case." Defendant also complained his counsel "failed to present an insanity defense even in light of significant evidence indicating the probable success of such a defense." Thus, the record on appeal demonstrates the facts underlying defendant's actual innocence claim would have been known to him at the time he filed his first postconviction petition. Snow, 2012 IL App (4th) 110415, ¶ 21.
¶ 27 Finally, as defendant must satisfy all three elements of an actual innocence claim to gain the benefit of the exception to the bar on successive postconviction petitions, it is enough that he cannot satisfy any one element. See People v. English, 403 Ill.App.3d 121, 133, 933 N.E.2d 366, 379 (2010) (noting "the actual innocence exception to the bar on successive postconviction petitions is met only where the defendant can prove all of the elements of a freestanding claim of actual innocence: that the evidence is newly discovered, noncumulative, and material"). We therefore need not address the remaining elements.
¶ 28 III. CONCLUSION
¶ 29 For the reasons stated, we affirm the trial court's judgment.
¶ 30 Affirmed.