Opinion
No. 1-16-0060
04-11-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DYSHAWN BROWN, 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. 12 CR 8183 Honorable Vincent M. Gaughan, Judge, presiding. JUSTICE HOWSE delivered the judgment of the court.
Presiding Justice Cobbs and Justice Lavin concurred in the judgment.
ORDER
¶ 1 Held: Trial court did not err in summarily dismissing postconviction petition. Court duly admonished defendant regarding mandatory supervised release as part of his negotiated guilty plea. Defendant's claim that his statement was involuntary lacks arguable merit. Defendant's claim that his guilty plea resulted from counsel's erroneous advice and threat to withdraw lacks an arguably plausible defense. ¶ 2 Pursuant to a negotiated guilty plea, defendant Dyshawn Brown was convicted of first degree murder and sentenced to 30 years' imprisonment. He now appeals from the summary dismissal of his postconviction petition. He contends that he stated arguable claims that his plea 2 was involuntary because (1) counsel rendered ineffective assistance in the guilty-plea proceedings, and (2) his plea was based upon his coerced confession, and counsel was ineffective for not litigating a motion to suppress that confession. Defendant also contends that he stated an arguable claim that he was deprived of the benefit of the bargain on his negotiated plea by not being duly admonished regarding mandatory supervised release (MSR). We affirm. ¶ 3 Defendant was charged with first degree murder for allegedly intentionally or knowingly killing Lawrence Wilson on or about August 7, 2011, while defendant was armed with, and personally discharged, a firearm. The same indictment charged Anthony Pettye with first degree murder but the record does not include the allegations against him. An earlier indictment, 11 CR 14421, charged defendant, Devonte Lamb, and Desmond Smart with the first degree murder of Wilson but was superseded in June 2012. ¶ 4 In December 2011, on the State's motion, the court ordered buccal swabs from defendant, Lamb, and Smart. In January 2012, the State notified defendant that evidence swabbed from the pump and stock of a particular shotgun would be consumed in DNA testing. ¶ 5 In April 2012, counsel filed a motion to suppress defendant's statements claiming that, in questioning after his arrest on August 8, 2011, he was unable to understand his Miranda rights "due to [his] physical, psychological, mental, education, emotional, and/or psychological state, capacity and condition." He also claimed that his statements were the "result of psychological and mental coercion" and confrontation "with certain material misrepresentations." ¶ 6 Also in April 2012, at the State's behest, the court ordered a behavioral clinical examination (BCX) of defendant to determine whether he was capable of understanding Miranda warnings. In May 2012, psychiatrist Dr. Nishad Nadkarni of the court's Forensic Clinical 3 Services reported to the court that he examined defendant and concluded to a reasonable degree of psychiatric certainty that defendant was capable of comprehending Miranda warnings at or about the time of his arrest. ¶ 7 On June 11, 2012, the original indictment was superseded. Counsel entered defendant's not-guilty plea and asked the court for a plea conference. Defendant acknowledged that he wanted the conference and signed a written request for a pretrial conference. After the conference, the case was continued to July 2. ¶ 8 On July 2, 2012, counsel told the court that defendant was "no longer interested in" a plea, which defendant confirmed. Counsel noted that he had a pending motion to suppress. The State moved for specificity on the motion to suppress, noting that defendant's statement was on video. Defense counsel stated that he was not alleging "any acts outside of the video." Defendant swore that the allegations in the motion to suppress were true to the best of his belief and knowledge. The case was continued to July 26 for a hearing on the motion to suppress. ¶ 9 On July 26, 2012, the State told the court that the parties reached a plea agreement for 30 years imprisonment. Without objection, the State amended the indictment to remove the allegation that defendant was armed with, and had personally discharged, a firearm during the first degree murder of Wilson. The court read the amended charge, and defendant agreed that he was pleading guilty to that charge. The court admonished him that he "could be sentenced anyplace from a minimum of 20 to a maximum of 60 years with three years mandatory supervised release" and no probation or conditional discharge. Defendant said that he understood. The court described defendant's right to a jury trial. Defendant acknowledged the admonishments and signed a jury waiver. The court described defendant's rights in a trial, 4 including his rights to remain silent, present evidence, and cross-examine witnesses. Defendant said that he understood and was waiving those rights. Defendant denied that any promises or agreements other than the plea agreement had been made to him, he denied that "anybody forced [him] to plead guilty," and he agreed that he was pleading guilty of his own free will. ¶ 10 The State recited the factual basis for the plea, after which counsel stipulated thereto and defendant swore that it was true to the best of his belief and knowledge. Defendant was with Lamb and Smart at Pettye's apartment on the night in question when Pettye offered them money to kill a Gangster Disciples member. Pettye told defendant to do it, and he agreed. The four men left the apartment and asked a passerby who had marijuana to sell. The man - Wilson - said that he had some. They believed him to be a Gangster Disciple, so they told him they needed to get money and went some distance away. A short time later, Lamb beckoned Wilson towards the four men, and defendant shot Wilson in the chest as he approached. The four men returned to Pettye's apartment. Wilson died of his chest injuries. ¶ 11 The court accepted defendant's plea, finding that he understood the charge and sentencing he faced, and was pleading guilty voluntarily and knowingly. Defendant waived his right to a presentencing investigation, and the State acknowledged that he had no prior convictions. The court asked defendant if he wanted to make a statement, and he said "Sir, could I - no." The court then sentenced defendant to "30 years in [prison], three years mandatory supervised release, credit for 353 days." The mittimus also stated that defendant's sentence included three years' MSR in addition to 30 years' imprisonment. Counsel withdrew the motion to suppress, telling the court that he discussed the withdrawal with defendant, and defendant said 5 "yes" when asked if he was "okay" with the withdrawal. The court informed defendant of his appeal rights, which he said he understood. ¶ 12 Defendant filed the instant pro se postconviction petition in August 2015. Defendant claimed that his right to remain silent was violated because, during his interrogation, he repeatedly expressed his desire to go home but questioning continued. He also claimed that "the detective persisted in efforts to wear down my resistance and make me change my mind with constant questioning." He claimed that he was questioned for several hours while handcuffed and wearing no socks or shoes. His mother attended his interrogation but "became more and more aggressive and hostile *** issuing many threats, vile profanity, and promises." The police made "the offer of leniency" including by observing that at age 15 he was still a minor. He claimed that his confession was not voluntary because he was a juvenile, was intoxicated from alcohol and marijuana, and was threatened by his mother and "mentally coerc[ed]" by the detectives. ¶ 13 Defendant also claimed that counsel was ineffective for not presenting exculpatory evidence that defendant's DNA was excluded, and a codefendant's DNA could not be excluded, as being present on the murder weapon. He claimed that he would not have pled guilty had he known of that evidence but counsel never informed him of it, and that counsel had told him that "all of the evidence is against" him. He claimed that counsel was ineffective for not filing a motion to suppress his statements, for telling him that codefendants had agreed to testify against him "when they didn't," and for threatening to withdraw as counsel if he did not plead guilty "because of all 'the evidence against you.' " He claimed actual innocence based on the DNA evidence and the involuntary nature of his confession. He claimed that his MSR term extends his 6 sentence beyond the agreed 30 years. Lastly, he claimed that the statute by which his case was automatically transferred to criminal court (rather than juvenile court) is unconstitutional. ¶ 14 Attached to the petition was defendant's affidavit generally verifying the allegations of the petition. He did not state in his petition or affidavit how he knew that codefendants had not agreed to testify against him, nor did he attach an affidavit from any codefendant. The only other affidavits attached were from Nicole Brown. Nicole averred that she knew defendant was intoxicated when she saw him at the police station, recognizing the change in his mannerisms and speech. She asked the detectives for a drug test but they did not acknowledge her request. Defendant was "shaking cold with no shoes or socks on, [and] was handcuffed to a chair." Nicole averred that she was attending court for defendant's case and asked defendant's counsel for his opinion of the case. Counsel told her that, if defendant lost, he faced a prison sentence of 45 years to life. He told her that Lamb and Smart had agreed to testify against defendant, and he did not tell her that defendant would have to testify against Pettye. Counsel advised Nicole that defendant should "take the plea." ¶ 15 Also attached to the petition were selected portions of the transcript of defendant's August 2011 interrogation, in which defendant answered questions about the events of the night in question. Throughout the transcript, defendant's mother exhorted him, sometimes in vulgar language, to be forthcoming and tell the truth rather than face imprisonment for someone else's crime. Defendant's mother threatened him multiple times, and at one point the detective questioning defendant asked her to "stop threatening him." In the transcript, defendant at first implicated Pettye as the shooter and denied knowing what Pettye intended to do, but the 7 detective and defendant's mother told him that they did not believe him. Defendant then admitted that he knew Pettye had set out to kill a Gangster Disciples member. When the detective and defendant's mother again doubted his account and urged him to tell the truth, defendant repeated his account that Pettye shot Wilson. When the detective and defendant's mother again doubted his account, he offered to testify against Pettye. He then repeatedly expressed his desire to go home and insisted that he had given a true and full account. When defendant's mother asked him if Pettye had threatened him, defendant said that he already knew that the others were going to blame him. The detective and defendant's mother again exhorted him to tell the truth. Subsequent pages of the transcript are absent, until defendant and his mother are marking and initialing a photograph. The transcript ends with defendant asking how long a sentence he faces and the detective replying "Can't say, you're 15 years old, I don't know" and "Tell the truth (inaudible) judge I don't know. (inaudible) show you some leniency." ¶ 16 Lastly, attached to the petition were copies of a court order and police and laboratory reports related to testing DNA from defendant and three redacted codefendants or suspects against DNA from a shotgun. The results of the testing, reported in February 2012, were that defendant and two redacted suspects did not contribute to the DNA on the shotgun and a redacted suspect could not be excluded as a source of the DNA on the shotgun. ¶ 17 The court summarily dismissed the petition in October 2015. Regarding the right to remain silent, the court noted that defendant was relying upon People v. Jackson, 180 Ill. App. 3d 78 (1989), where this court found that a defendant invoked that right by saying that she wanted to stop talking and go home. However, defendant merely said that he wanted to go home, 8 which the court found to not be an unequivocal invocation of the right to remain silent. The court found that defendant's confession was voluntary, noting that his mother was present, finding that handcuffing him was not unreasonable given the nature of the crimes at issue, and finding from the transcript of the interrogation that the officer engaged in no "abusive or coercive" behavior, made no promises or threats, and used no "trickery." As to counsel being ineffective for not filing a motion to suppress, the court noted that counsel filed such a motion. As to the claim that defendant's plea resulted from counsel's erroneous advice and threat to withdraw, the court found that counsel "was being honest with" defendant that his case "was difficult" and noted that defendant denied in the plea hearing that counsel pressured him into pleading guilty. The court found no legal merit in defendant's MSR claim or challenge to the automatic transfer statute, noting that the latter had been found constitutional by this court. Lastly, as to defendant's actual-innocence claim, the court found that the DNA report was available five months before his plea and was not exonerative because the absence of defendant's DNA on the fatal weapon did not "absolve" his statements admitting to participating in the shooting. ¶ 18 On appeal, defendant contends that his petition stated various arguable claims and should not have been summarily dismissed. He contends that his plea was involuntary due to counsel's ineffective assistance in misinforming him of the strength of the State's case and in threatening to withdraw if he did not plead guilty. He contends that his plea was involuntary because it was based upon his coerced or involuntary confession. Lastly, he contends that he was deprived of the benefit of the bargain on his negotiated plea by not being duly admonished regarding MSR. ¶ 19 A postconviction petition may be summarily dismissed within 90 days of its filing if "the court determines the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) 9 (West 2016). A petition may be summarily dismissed if it has no arguable basis in law or fact because it relies on an indisputably meritless legal theory or a fanciful factual allegation, or it is substantially incomplete because it does not include objective or independent corroboration of its allegations. People v. Allen, 2015 IL 113135, ¶¶ 24-26. Regarding the latter, a defendant raising claims outside the record must either attach evidence beyond his own verification of the petition, such as affidavits, supporting those claims or explain why such evidence is not attached. 725 ILCS 5/122-2 (West 2014); Allen, ¶¶ 26-27. At the first stage, documented factual allegations are construed liberally and accepted as true unless affirmatively refuted by the record. People v. Brown, 2017 IL 121681, ¶ 27; Allen, ¶¶ 25-26. We review de novo the summary dismissal of a postconviction petition. Allen, ¶ 19. ¶ 20 We first consider defendant's contention that his plea was involuntary because it was based upon his coerced or involuntary confession. As we shall explain below, this claim is at the heart of his petition. He contends that his statement should have been suppressed as involuntary because of his age and lack of experience with law enforcement, his intoxication or impairment, the conditions under which he was questioned, and his mother's conduct during his questioning. ¶ 21 A confession must be voluntary to be admissible in evidence in a criminal trial, with the test of voluntariness being whether the defendant made the statement freely, voluntarily, and without compulsion or inducement, or conversely whether his will was overcome at the time he confessed. In re D.L.H., Jr., 2015 IL 117341, ¶ 58. In determining whether a defendant's will was overcome, we consider the totality of the surrounding circumstances, including the defendant's characteristics and the details of the interrogation, with no single factor being dispositive. Id., ¶ 59. A defendant's characteristics include age, intelligence, background, 10 experience, mental capacity, education, and physical condition at the time of questioning. Id. Details of the interrogation include the legality and duration of the detention, the duration of the questioning, the provision of Miranda warnings, and for a juvenile or minor the presence of an adult concerned with his welfare. Id.; People v. Murdock, 2012 IL 112362, ¶ 32. We consider any physical or mental abuse by police, including threats, promises, trickery, deception, or subterfuge. D.L.H., Jr., ¶ 59. Conversely, absent involvement by police or another governmental actor in coercion or compulsion, even " '[t]he most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible.' " People v. Hall, 195 Ill. 2d 1, 25 (2000), quoting Colorado v. Connelly, 479 U.S. 157, 166 (1986). ¶ 22 Here, we do not find defendant's claim of an involuntary confession arguable on the record and the provided documentation. While defendant provided Nicole Brown's affidavit that he was intoxicated, handcuffed, and "shaking cold with no shoes or socks on" at the police station, the affidavit does not establish that he was in this state during his questioning. Defendant's brief denies that Nicole is his mother, so the petition and its attachments do not establish that affiant Nicole Brown was present during defendant's questioning. Notably, the transcript of defendant's questioning does not reflect any complaints from his mother that her son is being questioned while intoxicated, cold, barefoot, or handcuffed. Also, the circuit court accepted that defendant was handcuffed during questioning but found it reasonable under the circumstances, and we agree. Upon reviewing the transcript, we find that it does not support the claim that defendant was impaired during questioning, as he coherently and responsively answered questions. We also find from reading the transcript that defendant's mother was earnestly encouraging him to answer questions truthfully and to exonerate himself. We conclude 11 that, during defendant's questioning, his mother was not acting in concert with the police but was acting as an adult concerned with defendant's welfare. In sum, we find under the totality of the circumstances that defendant has not presented an arguable claim that his statement would have been suppressed as involuntary. ¶ 23 Defendant also contends that his plea was involuntary due to counsel's ineffective assistance in threatening to withdraw if he did not plead guilty, and in misinforming him of the strength of the State's case by (1) telling him erroneously that codefendants had agreed to testify against him, and (2) not telling him of the exculpatory results of the DNA testing of the shotgun. ¶ 24 The right to effective assistance of counsel includes guilty-plea proceedings. Brown, ¶¶ 25-26. Claims of ineffective assistance are governed by the familiar two-pronged test, whereby a defendant must establish both that counsel's performance fell below an objective standard of reasonableness and that he was prejudiced by counsel's deficient performance. Id., ¶ 25. For purposes of the prejudice prong, a guilty-plea defendant must show a reasonable probability that, absent counsel's errors, he would not have pled guilty and would have insisted on going to trial. Id., ¶ 26. A defendant must have a claim of innocence or a plausible defense to show prejudice for ineffectiveness claims regarding his prospects of acquittal at trial, but need not have a claim of innocence or plausible defense for an ineffectiveness claim regarding his understanding of the consequences of his plea. Id., ¶¶ 45-46. At the first stage of postconviction proceedings, a defendant must show that counsel's performance was arguably unreasonable and that the defendant was arguably prejudiced. People v. Brown, 2017 IL App (1st) 150203, ¶ 24. ¶ 25 Here, as a threshold matter, we dispose of defendant's conclusory claim that counsel misinformed him that codefendants had agreed to testify against him. He did not attach any 12 codefendant's affidavit averring that he had not agreed to testify against defendant, nor did defendant otherwise state in his petition or affidavit how he knew that codefendants had not agreed to testify against him. Thus, he did not document or corroborate a key part of the claim: that counsel's advice or remark was erroneous. ¶ 26 Moreover, that claim and defendant's other ineffectiveness claims - he would not have pled guilty had counsel (1) told him of the DNA evidence, and (2) not threatened to withdraw if he did not plead guilty because of the weight of the evidence against him - concern the strength of his case rather than the consequences of his plea. Thus, a necessary component of showing arguable prejudice here was that defendant is innocent or has a plausible defense. He contends that he has a plausible defense in the exculpatory DNA evidence and the involuntariness of his confession. However, the DNA evidence is not exonerating, as defendant could have held and fired the shotgun without his DNA remaining thereon. Its exculpatory effect must be considered in light of defendant's statement, which for the reasons stated above would not have been suppressed. We conclude that defendant failed to show arguable prejudice including a plausible defense for his ineffectiveness claims. ¶ 27 Lastly, we quickly dispose of defendant's MSR claim. The trial court did not merely mention MSR during the guilty plea proceeding as part of the applicable sentencing range but clearly stated defendant's MSR term along with his prison term in pronouncing his actual sentence and in the mittimus. See People v. Boykins, 2017 IL 121365, ¶¶ 4, 15-16, 21. ¶ 28 Accordingly, the judgment of the circuit court is affirmed. ¶ 29 Affirmed.