Opinion
No. 1-11-1688
01-22-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DWAYNE BROOKS, 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. 07 CR 10262
The Honorable
Catherine M. Haberkorn,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Hyman and Justice Pucinski concurred in the judgment.
ORDER
¶ 1 Held: Summary dismissal of defendant's postconviction petition affirmed where claim had no arguable basis in fact of law. ¶ 2 Dwayne Brooks, the defendant, appeals from an order of the circuit court summarily dismissing his pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). He contends that the circuit court erred in summarily dismissing his petition because he stated therein the gist of a meritorious claim that appellate counsel was ineffective for failing to challenge the excessiveness of the 20-year prison sentence imposed on his burglary conviction. ¶ 3 The record shows that defendant and codefendant, Ray King, who is not a party to this appeal, participated in the burglary of an electronics store on the morning of May 4, 2007. At trial, the State presented evidence that two witnesses, David Swisher and David Duenas, observed two men "breaking into [a] store and taking stuff out." When the offenders drove away in a van, Swisher and Duenas followed, and advised a 911 operator of the license plate. The van exited the expressway at 43rd Street where it was pulled over by officers. Defendant and King fled the vehicle, and, after a brief chase, the officers detained them. Defendant was then read his Miranda rights, and admitted to a detective that he broke into the store to support his heroin addiction. Based on the evidence, the court found defendant guilty of burglary. ¶ 4 At the sentencing hearing, the State reviewed the facts of the case, the defendant's criminal history, and requested the maximum term of 30 years' imprisonment. The State contended that defendant's lack of employment history, and his extensive criminal history "point to a person who has absolutely no regard for the rights of others," and that his chances of rehabilitation were, "optimistically," slim. In mitigation, defense counsel requested a sentence within "a reasonable range of Class X sentencing[,]" contending that he was a drug addict, and that the offense was non-violent. ¶ 5 Before imposing sentence, the court noted that defendant was Class X mandatory, since he had been convicted of two previous Class 2 or greater felony convictions, then addressed defendant as follows:
"Mr. Dwayne Brooks, as the State pointed out, you have been in and out of the criminal system for most of your life. You¶ 6 Defendant moved to reconsider his sentence arguing that it was excessive. The court denied the motion and defendant appealed. In this court, defendant challenged the propriety of certain fees, and asserted his right to additional days of pre-sentence credit. This court vacated one fee, affirmed another, and determined that defendant was entitled to the five additional days of credit. People v. Brooks, No. 1-08-2035 (2009) (unpublished order pursuant to Supreme Court Rule 23). Defendant's petition for leave to appeal to the supreme court was denied; however, the supreme court directed this court to reconsider our decision in light of People v. Smith, 236 Ill. 2d 162 (2010), and, after doing so, we issued a revised order, vacating the other fee as well. People v. Brooks, No. 1-08-2035 (2010) (unpublished order pursuant to Supreme Court Rule 23). ¶ 7 On December 20, 2010, defendant filed the pro se postconviction petition at bar. In his petition, defendant alleged numerous violations to his constitutional rights, including, inter alia, that appellate counsel was ineffective for failing to challenge his sentence as excessive. On January 7, 2011, the circuit court dismissed defendant's petition. ¶ 8 In this appeal from that ruling, defendant contends that his petition should advance to second stage proceedings because he raised an arguable constitutional claim of ineffective assistance of appellate counsel based on counsel's failure to assert that his 20-year prison sentence was excessive. Defendant claims that if appellate counsel had challenged the excessiveness of his sentence, it is arguable that his sentence would have been reduced or his case remanded for resentencing. In particular, defendant contends that his sentence was unduly excessive in light of his drug addiction, the nonviolent nature of the offense, and the cost to taxpayers for imprisoning him for the length of his sentence. He also claims that the sentence was improperly motivated by the trial court's desire to punish him for prior crimes, and for exercising his right to trial. ¶ 9 We initially note that defendant has concentrated his arguments solely on this claim, and by failing to provide argument or citation to relevant authority, he has abandoned the remaining claims set forth in his postconviction petition, thereby forfeiting them for review. Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008); People v. Guest, 166 Ill. 2d 381, 414 (1995). ¶ 10 The Act provides a mechanism by which a criminal defendant may assert that his or her conviction was the result of a substantial denial of his or her constitutional rights. People v. Delton, 227 Ill. 2d 247, 253 (2008). Proceedings are commenced by the filing of a petition in the circuit court in which the original proceedings took place. People v. Rivera, 198 Ill. 2d 364, 368 (2001). Section 122-2 of the Act requires that defendant set forth in the petition the respects in which his or her constitutional rights were violated, and attach affidavits, records or other evidence supporting those allegations or explain their absence. People v. Rogers, 197 Ill. 2d 216, 221 (2001). ¶ 11 Defendant need only set forth the "gist" of a constitutional claim at the first stage of proceedings (People v. Edwards, 197 Ill. 2d 239, 244 (2001)); however, the circuit court must dismiss the petition if it finds that the petition is frivolous or patently without merit (725 ILCS 5/122-2.1(a)(2) (West 2008); People v. Hodges, 234 Ill. 2d 1, 10 (2009)). A petition is frivolous or patently without merit if it has no arguable basis in law or in fact. Hodges, 234 Ill. 2d at 16. We review the summary dismissal of a postconviction petition de novo. People v. Coleman, 183 Ill. 2d 366, 389 (1998). ¶ 12 Claims of ineffective assistance of appellate counsel are measured against the same standard as claims of ineffective assistance of trial counsel. People v. Paleologos, 345 Ill. App. 3d 700, 703 (2003). To prevail on a claim of ineffective assistance of counsel, defendant must show that counsel's performance was objectively unreasonable and that he or she was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). At the first stage of postconviction proceedings, a petition alleging ineffective assistance of counsel may not be summarily dismissed if it is arguable that counsel's performance fell below an objective standard of reasonableness, and it is arguable that the defendant was thereby prejudiced. Hodges, 234 Ill. 2d at 17. For the reasons to follow, we find that this is not such a case. ¶ 13 It is well-settled that appellate counsel need not brief every conceivable issue on appeal, and counsel is not ineffective for not raising issues which, in his judgment, are without merit, unless his or her appraisal of the merits is patently wrong. People v. Smith, 195 Ill. 2d 179, 190 (2000). Accordingly, unless the underlying issues are meritorious, defendant has suffered no prejudice from counsel's failure to raise them on appeal. Smith, 195 Ill. 2d at 190. ¶ 14 Here, defendant's claim of ineffective assistance of appellate counsel fails because it is not arguable that defendant was prejudiced by counsel's failure to raise an excessive sentencing claim on direct appeal. The trial court is generally considered to be in a better position to determine the appropriate sentence, having had the opportunity to weigh such factors as the defendant's age, habits, mentality, credibility, general moral character, and social environment, and thus has broad discretionary powers to determine the proper sentence. People v. Stacey, 193 Ill. 2d 203, 209 (2000). In addition, a sentence within statutory limits will be deemed excessive and the result of an abuse of discretion by the trial court, only where the sentence is greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense. Stacey, 193 Ill. 2d at 210. ¶ 15 Here, because of his prior criminal history, defendant was subject to a Class X sentence of between 6 and 30 years' imprisonment. 730 ILCS 5/5-4.5-25(a) (West 2010). The 20-year sentence imposed by the court was within statutory limits, and, as evident in the court's comments set forth above, was decided upon after the consideration of proper sentencing factors, including his history of recidivism and his dim prospects for rehabilitation. The comments also show that the court was aware of defendant's drug addiction, the prior opportunities he had been given to address his situation, and his failure to take advantage of those opportunities, opting instead to continue to engage in criminal activity. Defendant, however, would have his appellate counsel ask the reviewing court to substitute its judgment for the trial court, re-weigh the relevant factors, and independently conclude that this sentence is excessive, which a reviewing court may not do. People v. Streit, 142 Ill. 2d 13, 19 (1991). The record thus provides no basis for a meritorious challenge to the sentence imposed. ¶ 16 Defendant disagrees, and additionally claims that the nonviolent nature of the offense dictates a more lenient sentence, and that the court did not consider the nature and seriousness of the offense. We observe that this was a bench trial, and the court heard the evidence adduced at trial and is presumed to know that the offense at issue was nonviolent. People v. Hill, 408 Ill. App. 3d 23, 30 (2011). However, as already stated, the trial court was entitled to consider defendant's lengthy criminal history, and his continued resort to crime after a number of more lenient sentences, factors that bear on defendant's potential for rehabilitation. Hill, 408 Ill. App. 3d at 30. Here, the court specifically found that a longer period of incarceration was necessary to deter defendant's criminal conduct, a finding that is supported by the record and which offers no basis for a claim of ineffective assistance of appellate counsel. Hill, 408 Ill. App. 3d at 30. ¶ 17 Defendant also contends that appellate counsel was ineffective for failing to challenge the trial court's failure to consider the financial impact of his incarceration on the Department of Corrections. 730 ILCS 5/5-4-1(a)(3) (West 2008). Although the statute so requires, defendant cannot show that he was prejudiced by counsel's failure to raise this issue on appeal. It is well-settled that a trial court is not required to specify on the record the reasons for a defendant's sentence, and, in the absence of evidence to the contrary, we will presume that the trial court performed its obligations and considered the financial impact statement before sentencing defendant. People v. Canizalez-Cardena, 2012 IL App (4th) 110720, ¶ 24; see also People v. Acevedo, 275 Ill. App. 3d 420, 424-26 (1995). ¶ 18 Defendant further claims, that the sentence imposed by the court was improperly motivated by a desire to punish him for prior crimes, finds no support in the record and does not supply a claim of ineffective assistance of appellate counsel. A defendant's criminal history is indisputably a proper factor for a trial court to consider in sentencing (730 ILCS 5/5-5-3.2 (West 2010)), and we find nothing in the record to indicate that the trial court's consideration of defendant's criminal history was improper. ¶ 19 Finally, defendant contends that his sentence was designed as punishment for exercising his right to trial. He points out that his codefendant, who pleaded guilty before the same judge, received a sentence of six years' imprisonment. He alleges that the disparity between his sentence and his codefendant's sentence allows for a "reasonable inference" that the trial court intended to punish him for exercising his right to trial. ¶ 20 The mere fact that a codefendant received a shorter sentence following a guilty plea does not render defendant's sentence unreasonable or excessive. Although similarly situated defendants should not receive grossly disparate sentences, a mere disparity in the sentences, in and of itself, is not sufficient to constitute a violation of fundamental fairness. People v. Spriggle, 358 Ill. App. 3d 447, 455 (2005); People v. Scott, 2012 IL App (4th) 100304, ¶¶ 24-25 (recognizing that circumstances may warrant codefendants receiving different sentences and that the sentence imposed on a codefendant following a plea agreement does not provide a valid basis of comparison to a sentence entered after a trial). Here, defendant's contentions are merely speculative, and he has provided no evidence to show that the court punished him for proceeding to trial, or that his codefendant's sentence provides a basis for reducing his sentence. As such, he does not set forth an arguable claim that appellate counsel was ineffective for failing to raise this issue on appeal. ¶ 21 For the foregoing reasons, we affirm the order of the circuit court dismissing defendant's postconviction petition at the first stage of proceedings. ¶ 22 Affirmed.
have been given a chance to have probation. You have been given a chance to have a little taste of jail to try and deter you from crime. That didn't work. You have been given *** drug rehab. None have seemed to work for you because you keep going back to heroin and crime.
Then you have violent crimes, aggravated criminal sexual assault where you received eight years in the Illinois Department of Corrections. You have a Class two *** drug case. You have other drug cases. Then the most ridiculous charges of all are failing to report your address [as] a sex offender. *** Two times in two different years far apart you failed to change your address with the reporting police department because you could care less about the law. That's all you had to do was go to a police station and give them your address. You couldn't even do that. You were placed on probation for it once and then had to be sent to the penitentiary for violating it yet again.
You have had periods of probation. You have had periods of jail. You have had periods of prison. You have had many different drug rehab locations of judges and probation officers trying to help you out with the drug problem, [and] you still keep going back to use.
You say you have a great relationship with this one lady that you are seeing now for five years; however, you have a three-year old daughter with somebody else *** that you don't even pay any child support for or that you don't even see. Also, *** you [claim to have] had such a good relationship with your foster mother, yet [you] raped one of the people in foster care, that really doesn't mesh. About employment, you don't have any jobs. You didn't even try to get a temp[orary] job since 2006. The longest you worked at some place was five months, so I guess that you would owe child support then.
You have done nothing positive whatsoever. All you have done is continued to use drugs, not use the services that have been made available to you *** through drug rehab, through probation officers, through the court systems. You just continued to use drugs and commit crimes, both violent and nonviolent offenses. ***
Based on everything that I have stated and seen in this defendant's career, that he has crime after crime, that he has violent crimes, he has drug crimes, he has been offered many types of services through the court system including probation and [drug rehab] *** and nothing has changed this defendant around. *** At this time the defendant will be sentenced to 20 years in the Illinois Department of Corrections."