Opinion
1-21-0953
12-16-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ZACHARY BROWN, 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 Cook County. No. 10 CR 16037 Honorable Arthur F. Hill, Jr., Judge presiding.
JUSTICE MITCHELL delivered the judgment of the court. Justices Delort and Lyle concurred in the judgment.
ORDER
MITCHELL JUSTICE.
¶ 1 Held: Where defendant could not show that his postconviction counsel provided unreasonable assistance by failing to provide evidentiary support for a claim in the postconviction petition, the claim's second-stage dismissal was affirmed.
¶ 2 In appealing the second-stage dismissal of his postconviction petition, Defendant Zachary Brown raises a single issue: did Brown's postconviction counsel provide unreasonable assistance by failing to develop his claim that Brown's youth at the time of plea negotiations affected his ability to knowingly and voluntarily reject a plea offer? For the following reasons, we affirm.
¶ 3 BACKGROUND
¶ 4 Brown was 16 years old when he shot Ian Roy twice in the leg on a bus. He ran off the bus after an unsuccessful attempt to shoot Roy a third time. Brown was arrested and subsequently charged with attempt first degree murder and aggravated battery with a firearm. The State offered him eight years' imprisonment in exchange for a guilty plea to one count of aggravated battery with a firearm. Several months later, the trial judge discussed the State's offer with the parties and asked to speak with Brown "regarding his knowledge of the possibilities." Brown maintained that he was rejecting the plea offer, affirmatively indicating that he understood the trial judge's admonishments. He was 18 years old at that time.
¶ 5 The case proceeded to trial, and a jury convicted Brown of attempted first degree murder. He was sentenced to 25 years in prison for attempted murder plus a 25-year firearm enhancement. On direct appeal, we affirmed the 25-year enhancement but reduced the sentence for attempted murder from 25 years to 6 years, for a total of 31 years' imprisonment. People v. Brown, 2015 IL App (1st) 130048, ¶ 47.
¶ 6 Brown subsequently retained counsel to file a postconviction petition. The petition set forth five claims, including a claim that Brown's rejection of the State's offer was not knowing and voluntary because, as a juvenile, he was not competent to evaluate the offer. After a hearing, the circuit court advanced his claim for actual innocence to a third-stage evidentiary hearing and dismissed the remaining claims. In dismissing the involuntary rejection of plea claim, the circuit court reasoned that the admonishments given to Brown were clear and sufficient to apprise him of the consequences of rejecting the plea offer.
¶ 7 After the evidentiary hearing, the circuit court denied postconviction relief based on the actual innocence claim. Brown timely appealed. Ill. S.Ct. Rs. 606, 651 (eff. July 1, 2017).
¶ 8 ANALYSIS
¶ 9 Brown does not challenge the dismissal of his claim on the merits. Rather, he argues that his postconviction counsel provided unreasonable assistance by failing to provide factual or evidentiary support for the claim that Brown's youth at the time of plea negotiations may have affected his ability to knowingly and voluntarily reject the State's offer. Whether postconviction counsel provided a reasonable level of assistance is reviewed de novo. People v. Suarez, 224 Ill.2d 37, 41-42 (2007). In addition, the dismissal of a postconviction petition without an evidentiary hearing is also reviewed de novo. Id. at 42.
¶ 10 The right to counsel during postconviction proceedings is wholly statutory. People v. Lander, 215 Ill.2d 577, 583 (2005). The Post-Conviction Hearing Act provides for the appointment of counsel for an indigent defendant after his pro se petition survives the first stage. 725 ILCS 5/122-4 (West 2016). A defendant, however, is not barred from hiring private postconviction counsel even at the first stage. People v. Anguiano, 2013 IL App (1st) 113458, ¶ 16. Whether retained or appointed, postconviction counsel must provide a "reasonable" level of assistance. People v. Zareski, 2017 IL App (1st) 150836, ¶¶ 51, 55 (citing People v. Cotto, 2016 IL 119006, ¶ 41).
¶ 11 In evaluating performance of postconviction counsel retained at the first stage of proceedings, we have adopted a Strickland-like analysis: a petitioner must show a deficiency in postconviction counsel's performance and that the deficient performance prejudiced the petitioner. Zareski, 2017 IL App (1st) 150836, ¶¶ 59, 61; see also Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶ 12 As to postconviction counsel's performance, Brown argues that it was unreasonable for counsel to not include specific factual allegations and evidence regarding Brown's development or circumstances other than reference to his age. The standard of reasonable assistance is "significantly lower than the one mandated at trial by our state and federal constitutions." People v. Custer, 2019 IL 123339, ¶ 30. Here, Brown's postconviction counsel laid out the legal framework underlying her argument, discussing the key Supreme Court cases for the proposition that juvenile defendants are inherently different from adult defendants and therefore should be treated differently. Those Supreme Court cases-Miller v. Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48 (2010); and Roper v. Simmons, 543 U.S. 551 (2005)-discuss distinctive attributes of youth and scientific data suggesting that a brain's decision-making mechanisms can affect a youth's ability to evaluate risks and that these attributes can implicate matters beyond juvenile sentencing, such as plea bargains. Counsel also articulated how Brown's youth could have possibly affected his evaluation of the State's offer, as opposed to how a rational adult would have favorably evaluated it.
¶ 13 This is not a case where postconviction counsel utterly failed to include a claim in the petition (see People v. Schlosser, 2012 IL App (1st) 092523, ¶ 19) or failed to plead an element of a claim (see People v. Groszek, 2016 IL App (3d) 140455, ¶ 14). Brown's postconviction counsel essentially alleged in the petition that the trial judge's admonishments were insufficient to constitute knowing and voluntary rejection of a plea offer due to his age. While Brown argues that counsel should have attached affidavits from him and his trial counsel attesting to his subjective understanding of the plea offer, the claim set forth in the petition and the supporting authority simply ask to consider Brown's youth and its general attendant characteristics, such as "immaturity, recklessness, and impetuosity" (Miller, 567 U.S. at 472).
¶ 14 In light of such framework, counsel made allegations with respect to Brown's age and age-related restrictions in Illinois on driving, voting, marriage, and entering into a contract. In fact, counsel also alleged that due to his youth, Brown could not appreciate the difference between the offer of 8 years and the minimum sentence of 31 years as charged, and that the offer would not have been as appealing to him as it would have been to a rational adult. Because allegations are generally taken as true at the second stage of postconviction proceedings (People v. Pendleton, 223 Ill.2d 458, 473 (2006)), these allegations served the same purpose as the proposed affidavits: to aver that Brown lacked meaningful understanding of the consequences of rejecting the plea offer. Brown does not contend that he has any other objective indicator of diminished capacity, such as physical or mental disability, that counsel failed to allege. Accordingly, the omission of affidavits cannot be said to have rendered postconviction counsel's performance unreasonable, especially under the relaxed standard of reasonable assistance.
¶ 15 Further, Brown was not prejudiced by postconviction counsel's performance, a fatal defect in his claim. The claim at issue alleged that the trial judge's admonishments were not sufficient, given Brown's youth, to allow a knowing and voluntary rejection of the plea offer. In that regard, the circuit court dismissed the claim based on its merits, not because the claim lacked supporting evidence:
"Regarding the allegation that the defendant's refusal to accept the state's offer of eight years in the penitentiary was not knowing, I believe the evidence is real clear in terms of
the record that the defendant was admonished on the record regarding the offer and worse [sic] case scenario as it's related to the charges, it was very, very clear." (Emphasis added.)The circuit court expressly stated that the trial judge clearly admonished Brown regarding the terms of the offer as well as the consequences of rejecting that offer. The record further reveals that the trial judge requested to speak with Brown to confirm "his knowledge of the possibilities" and thoroughly explained to him the charges against him as well as the minimum and maximum sentences possible. The trial judge also explained that a life sentence was a possible consequence, and Brown affirmatively acknowledged that he understood each of these admonishments. The circuit court found this colloquy clearly conveying the information to Brown.
¶ 16 In arguing the contrary, Brown relies heavily on an Oregon case, In the Matter of C.L.E., 502 P.3d 1154 (Or. Ct. App. 2021). The juvenile in that case, unlike Brown, was 13 years old at the time of plea bargaining and was intellectually disabled. Id. at 1157. Here, in contrast, Brown was 18 years old when he rejected the plea offer after the judge's admonishments. Again, there was no allegation that Brown suffered from an intellectual disability or behavioral disorder. In fact, the CLE. court observed that "[y]ounger adolescents are less inclined to consider future consequences than older adolescents and adults, and are more inclined to overvalue immediate consequences." (Emphasis added.) Id. at 1160. At the age of 18, Brown was an older adolescent when he was evaluating the offer.
¶ 17 Brown also contends that the disparity between the 8-year plea offer and the actual sentence of 31 years shows a defect in his reasoning at the time he rejected the offer. However, a defendant has the freedom to reject a favorable offer and go to trial in the hope of being acquitted. See People v. Hale, 2013 IL 113140, ¶ 28. Given that Brown repeatedly raised issues regarding his identification during the trial and maintained claim for actual innocence in his postconviction petition, his rejection of the plea offer alone does not demonstrate defective reasoning.
¶ 18 Brown fails to show his postconviction counsel's deficient performance in raising a claim that his youth affected his ability to knowingly and voluntarily reject the State's plea offer, or the resultant prejudice from that allegedly deficient performance. The second-stage dismissal of the claim is affirmed.
¶ 19 CONCLUSION
¶ 20 The judgment of the circuit court of Cook County is affirmed.
¶ 21 Affirmed.