Opinion
4-22-0652
06-21-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHANDRE VINCENT CAMPBELL, 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 McLean County No. 16CF992 Honorable William A. Yoder, Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court Presiding Justice DeArmond and Justice Turner concurred in the judgment.
ORDER
KNECH JUSTICE
¶ 1 Held: The appellate court affirmed, concluding the trial court's failure to explain its reasoning for finding one of several issues frivolous and patently without merit in dismissing defendant's pro se postconviction petition at the first stage did not constitute an improper partial dismissal.
¶ 2 In April 2022, defendant, Nathandre Vincent Campbell, filed a pro se postconviction petition. In June 2022, the trial court summarily dismissed defendant's petition as frivolous and patently without merit, finding it failed to present the gist of a constitutional claim. Defendant appeals, asserting the court's dismissal was an improper partial summary dismissal because it failed to address one of defendant's claims. We affirm.
¶ 3 I. BACKGROUND
¶ 4 In September 2016, defendant was indicted by a grand jury for numerous offenses based upon his unlawful possession of a firearm. Ultimately, the State proceeded against defendant on one count of being an armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2016)), alleging defendant, on or about September 3, 2016, knowingly possessed a firearm after having been convicted of the forcible felonies of burglary in McLean County case No. 92-CF-0672 and armed robbery in McLean County case No. 97-CF-0731.
¶ 5 In October 2018, the matter proceeded to a jury trial. Chris Payton testified he was visiting his wife, Maria Payton, at a motel in Normal, Illinois. Chris testified to finding Maria there with two other men, one of whom was defendant. Chris and Maria were outside the motel room talking when defendant approached him, and after a brief exchange of words, defendant pointed a gun at him. Chris called the police.
¶ 6 Police Officer Andrew Rippy testified he obtained a search warrant for the motel room defendant and Maria were staying in together. Officer Rippy found a handgun matching Chris's description in the bathroom ceiling of the motel room. Police Officer Joshua Wilson corroborated Officer Rippy's testimony. The State then introduced evidence through Officer Melissa Zabukovec of her interview with defendant at the police station. In the audio- and videorecorded interview, defendant stated the gun belonged to him and admitted to pulling the gun out and showing it to Chris but denied ever pointing it at Chris. Defendant admitted to putting the gun in the ceiling of the motel room bathroom. Defendant also stated, on multiple occasions, Maria did not know about the gun and requested Officer Zabukovec not allow Maria to take any blame for the gun.
¶ 7 By stipulation of the parties, the trial court took judicial notice of defendant's previous burglary and armed robbery convictions.
¶ 8 Defendant testified he had been convicted of burglary in 1992 and armed robbery in 1997. He testified he was in a dating relationship with Maria for a year and a half. Defendant stated he confronted Chris and they exchanged words. Defendant testified the gun found in the motel room belonged to Maria. According to defendant, Chris gave Maria the gun for her protection. Defendant stated he never possessed the gun belonging to Maria. Defendant testified he told Officer Zabukovec the gun was his in order to protect Maria.
¶ 9 Maria was not called as a defense witness.
¶ 10 The jury found defendant guilty of being an armed habitual criminal. In November 2018, the trial court denied defendant's motion for judgment of acquittal notwithstanding the verdict and motion for a new trial. Defendant was sentenced to 17 years in prison. In December 2018, defendant filed a motion to reconsider his sentence, which the court denied.
¶ 11 Defendant appealed, arguing the State failed to prove him guilty beyond a reasonable doubt. People v. Campbell, 2021 IL App (4th) 190060-U, ¶ 45. In June 2021, this court affirmed. Campbell, 2021 IL App (4th) 190060-U, ¶ 50.
¶ 12 In April 2022, defendant filed a pro se postconviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)), which raised the following issues. Defendant alleged appellate counsel was ineffective for failing to raise on direct appeal (1) a claim for relief under a "new law" related to the armed habitual criminal statue and (2) an ineffective assistance claim related to trial counsel's failure to file a motion to quash his arrest. Defendant also alleged his burglary conviction was improperly admitted, and its use to convict him of being an armed habitual criminal violated the eighth amendment (U.S. Const., amend. XIII). Defendant further alleged his trial counsel was ineffective for failing to (1) investigate why defendant was not charged within 48 hours of his arrest; (2) move to dismiss his indictment based on perjured grand jury testimony; (3) argue his prior armed robbery conviction was unconstitutional; and (4) call Maria to testify.
¶ 13 In June 2022, the trial court dismissed defendant's petition, finding it was "frivolous and patently without merit and fail[ed] to present the gist of a constitutional claim." Specifically, the court reasoned:
"In reviewing all of [defendant's] claims, they are either waived or forfeited for failing to raise on direct appeal, or as related to claims of ineffective assistance of counsel, [defendant] has failed to establish that counsel's representation fell below an objective standard of reasonableness, and that but for this deficiency, there is a reasonable probability that counsel's performance was prejudicial to the defense. In other words, there is no reasonable probability that, but for counsel's unprofessional errors, as alleged by the [defendant], that the result of the proceeding would have been different."
¶ 14 This appeal followed.
¶ 15 II. ANALYSIS
¶ 16 On appeal, defendant argues the trial court failed to adequately address all of his claims, which amounts to an impermissible partial summary dismissal of defendant's petition. For the reasons that follow, we disagree and affirm the court's judgment.
¶ 17 The Act provides a defendant with a collateral means to challenge his conviction or sentence for violations of federal or state constitutional rights. People v. Jones, 211 Ill.2d 140, 143, 809 N.E.2d 1233, 1236 (2004). The adjudication of a postconviction petition follows a three-stage process. Id. at 144. During the first stage, the trial court must, independently and without considering any argument by the State, decide whether the defendant's petition is "frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2022). To survive dismissal at the first stage, the postconviction petition "need only present the gist of a constitutional claim," which is a "low threshold" that requires the petition contain only a limited amount of detail. People v. Gaultney, 174 Ill.2d 410, 418, 675 N.E.2d 102, 106 (1996). Legal argument or citation to legal authority is not required. People v. Brown, 236 Ill.2d 175, 184, 923 N.E.2d 748, 754 (2010). The Act requires the petition to "have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." 725 ILCS 122-2 (West 2022). In analyzing the petition, courts are to take the allegations of the petition as true as well as liberally construe them. Brown, 236 Ill.2d at 184.
¶ 18 The trial court may dismiss a pro se postconviction petition "as frivolous or patently without merit only if the petition has no arguable basis either in law or in fact." People v. Hodges, 234 Ill.2d 1, 11-12, 912 N.E.2d 1204, 1209 (2009). A petition lacks an arguable legal basis when it is based on an indisputably meritless legal theory, such as one the record completely contradicts. Id. at 16. A petition lacks an arguable factual basis when it is based on a fanciful factual allegation, such as one that is clearly baseless, fantastic, or delusional. Id. at 16-17. We review the trial court's dismissal of a postconviction petition without an evidentiary hearing de novo. People v. Simms, 192 Ill.2d 348, 360, 736 N.E.2d 1092, 1105-06 (2000).
¶ 19 Initially, we address defendant's contention the trial court improperly granted a partial summary dismissal because it failed to specifically discuss one of defendant's numerous claims. The allegedly missed claim is defendant's assertion the use of burglary as a forcible felony for the offense of being an armed habitual criminal violated the eighth amendment of the United States Constitution. Defendant contends, due to the improper partial dismissal, his entire petition should proceed to the second stage of postconviction proceedings, given the 90-day period has passed. See People v. Pendleton, 223 Ill.2d 458, 472, 861 N.E.2d 999, 1007 (2006) (stating where a postconviction petition is not dismissed within 90 days, the trial court must docket the matter for further consideration).
¶ 20 Defendant cites People v. Rivera, 198 Ill.2d 364, 763 N.E.2d 306 (2001), in support of his contention. In Rivera, the defendant's petition alleged six violations of his constitutional rights. Id. at 366. The trial court dismissed four of the defendant's claims as frivolous or patently without merit. Id. However, the court found the defendant had stated the gist of a meritorious claim for two of his claims, and it advanced those claims for second-stage proceedings. Id. Our supreme court held the plain language of the Act did not allow for partial summary dismissals at the first stage of proceedings. Id. at 370-72.
¶ 21 Unlike Rivera, however, the trial court in this case expressly found defendant's postconviction petition was frivolous and patently without merit and summarily dismissed the petition in its entirety. In its written dismissal order, the court listed seven allegations from defendant's petition. Defendant, on appeal, argues there were eight allegations in the petition.
¶ 22 Defendant contends the missed allegation is the use of his 1992 burglary conviction as a forcible felony and element of the offense of armed habitual criminal, which violates the eighth amendment. First, we note defendant's burglary conviction, stipulated to by defendant at his trial, qualifies as a forcible felony pursuant to section 2-8 of the Criminal Code of 2012 (720 ILCS 5/2-8 (West 2016)) under the armed habitual criminal statute. 720 ILCS 5/24-1.7(a)(1) (West 2016).
¶ 23 Defendant's eighth-amendment argument must necessarily proceed in one of the two following directions: (1) his sentencing was inappropriate because of how the eighth amendment applies uniquely to the sentencing of juvenile offenders or (2) defendant's sentencing was excessive or in some other way cruel and unusual. "The Eighth Amendment's prohibition of cruel and unusual punishment 'guarantees individuals the right not to be subjected to excessive sanctions.' "Miller v. Alabama, 657 U.S. 460, 469 (2012) (quoting Roper v. Simmons, 543 U.S. 551, 560 (2005)). Defendant does not allege he was under the age of 18, nor does the record on review suggest he was under the age of 18 when he committed the 1992 burglary. As a matter of law, "an eighth amendment claim does not exist where defendant was 18 years old when he committed the offense." People v. Thompkins, 2022 IL App (4th) 200198-U, ¶ 26.
¶ 24 Defendant's vague eighth amendment claim must therefore address his sentence. Defendant's posttrial motion argued his 17-year prison sentence was excessive. That motion was denied. However, on direct appeal, defendant did not challenge his sentence. See Campbell, 2021 IL App (4th) 190060-U. Therefore, defendant is either implicitly arguing his appellate counsel was ineffective for failing to raise an excessive sentence claim on direct appeal, or he has forfeited this argument. As the trial court noted, all of defendant's claims in his petition "are either waived or forfeited for failing to raise on direct appeal, or as related to claims of ineffective assistance of counsel." Thus, the court explicitly captured the essence of defendant's eighth amendment claim in either instance.
¶ 25 This court has previously explained," '[w]aiver is the intentional relinquishment of a known right, whereas forfeiture is the failure to make a timely assertion of a known right.'" People v. Scott, 2015 IL App (4th) 130222, ¶ 21, 25 N.E.3d 1257 (quoting People v. Bowens, 407 Ill.App.3d 1094, 1098, 943 N.E.2d 1249, 1256 (2011)). Defendant had the opportunity to raise an argument regarding his sentence on direct appeal but chose not to, which suggests he forfeited this argument. Given defendant's protestation regarding his sentencing, his claim is most reasonably construed as directed at his appellate counsel for failing to raise the sentencing issue on direct appeal.
¶ 26 Claims of ineffective assistance of appellate counsel are governed by the two-prong test of Stricklandv. Washington, 466 U.S. 668 (1984). People v. Johnson, 206 Ill.2d 348, 378, 794 N.E.2d 294, 312 (2002). In order to succeed on an ineffective-assistance-of-appellate-counsel claim during the first stage of a postconviction proceeding, a defendant must show it is arguable (1) his appellate counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability, but for appellate counsel's errors, the appeal would have been successful. Hodges, 234 Ill.2d at 17. Appellate counsel's decision regarding which issues to pursue is generally entitled to substantial deference. People v. Johnson, 205 Ill.2d 381, 406, 793 N.E.2d 591, 606 (2002). Appellate counsel is not required to" 'brief every conceivable issue on appeal, and it is not incompetence of counsel to refrain from raising issues which, in his or her judgment, are without merit.'" Johnson, 206 Ill.2d at 378 (quoting People v. Easley, 192 Ill.2d 307, 329, 736 N.E.2d 975, 991 (2000)). Where the underlying issue is nonmeritorious, a defendant suffers no prejudice; therefore, the reviewing court is required to examine the merits of the claims not raised by appellate counsel. Simms, 192 Ill.2d at 362.
¶ 27 The trial court's sentencing "must be based on the particular circumstances of each case, including factors such as the defendant's credibility, demeanor, general moral character, mentality, social environment, habits, and age." (Internal quotation marks omitted.) People v. Price, 2011 Il App (4th) 100311, ¶ 36, 958 N.E.2d 341. Additionally, "the trial court is in a better position than a court of review to determine an appropriate sentence based upon the particular facts and circumstances of each individual case." (Internal quotation marks omitted.) Id. "A sentence within the statutory range will not be deemed excessive, and will not be disturbed, unless it is greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense." People v. Harris, 2015 IL App (4th) 140696, ¶ 55, 32 N.E.3d 211. "The sentence imposed by the trial court is entitled to great deference and will not be reversed on appeal absent an abuse of discretion." People v. McGuire, 2017 IL App (4th) 150695, ¶ 38, 92 N.E.3d 494.
¶ 28 The record indicates the trial court considered all factors in aggravation and mitigation. The court noted defendant's conviction for armed habitual criminal as a Class X offense would ordinarily subject defendant to 6 to 30 years in prison, but given defendant's previous Class X convictions involving armed violence, home invasion, and armed robbery, defendant's sentencing range was 6 to 60 years in prison. The State sought 25 years in prison, while defendant argued for the minimum of 6 years. The court noted defendant's previous sentence of 30 years in prison had not deterred defendant from his actions in the present matter. The court sentenced defendant to 17 years in prison, which is well within the sentencing range available for a Class X offense and significantly lower than the maximum 60-year extended-term sentence available. Accordingly, we find the court did not abuse its discretion in sentencing defendant to 17 years in prison. Because defendant has failed to show he was prejudiced by the court's sentence, he cannot show his appellate counsel was ineffective for failing to challenge his sentence on direct appeal.
¶ 29 Additionally, on appeal, defendant argues the use of his burglary conviction violated the eighth amendment because "he should only have had his guilt or innocence determined solely by reference to the offense charged." Defendant's petition cites People v. Gregory, 22 Ill.2d 601, 177 N.E.2d 120 (1961), for this claim. Gregory involved the admission of a confession referencing other unrelated crimes than what the defendants were charged with. Id. at 602-03. The court found the admission of the unredacted evidence prejudicial and violated the defendants' right to a fair trial. Id. at 603-05. However, Gregory does not involve an eighth amendment issue as defendant claims, but an evidentiary one. See People v. Dabbs, 239 Ill.2d 277, 292, 940 N.E.2d 1088, 1098 (2010) (noting rules on the admissibility of evidence of other crimes is derived from common law and "is not of constitutional magnitude").
¶ 30 Here, defendant's guilt was determined on the armed habitual criminal offense charged, which requires two qualifying prior felony convictions. As noted, defendant's burglary conviction is a qualifying prior conviction under the armed habitual criminal statute. While defendant challenges the use of his burglary conviction for this purpose, it was defendant who stipulated to its use and testified to it at trial. "Under the doctrine of invited error, an accused may not request to proceed in one manner and later contend on appeal that the course of action was in error." People v. Carter, 208 Ill.2d 309, 319, 802 N.E.2d 1185, 1190 (2003). "A party who agrees to the admission of evidence through a stipulation is estopped from later complaining about that evidence being stipulated into the record." People v. Kane, 2013 IL App (2d) 110594, ¶ 19, 5 N.E.3d 737. Defendant stipulated to his burglary conviction and then later testified to it. Thus, any error regarding the use of his burglary conviction would have been invited by defendant.
¶ 31 Accordingly, we find the trial court properly dismissed defendant's petition in its entirety.
¶ 32 III. CONCLUSION
¶ 33 For the reasons stated, we affirm the trial court's judgment.
¶ 34 Affirmed.