Opinion
NO. 5-14-0424
07-18-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRETT COLE, Defendant-Appellant.
NOTICE
Decision filed 07/18//17. The text of this decision may be changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of the same.
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 St. Clair County. No. 07-CF-783 Honorable John Baricevic, Judge, presiding. JUSTICE WELCH delivered the judgment of the court.
Presiding Justice Moore and Justice Goldenhersh concurred in the judgment.
ORDER
¶ 1 Held: The circuit court's ruling that the defendant's postconviction petition failed to show a substantial denial of his constitutional rights was correct. Therefore, the denial of the postconviction petition was proper. ¶ 2 The defendant, Brett Cole, appeals the circuit court's denial of his postconviction petition. The Office of the State Appellate Defender (OSAD) was appointed to represent the defendant. OSAD filed a motion to withdraw as counsel, alleging that there is no merit to the appeal. See Pennsylvania v. Finley, 481 U.S. 551 (1987); People v. McKenney, 255 Ill. App. 3d 644 (1994). The defendant was given proper notice and granted an extension of time to file briefs, objections, or any other document supporting his appeal. The defendant did not file a response. We considered OSAD's motion to withdraw as counsel on appeal. We examined the entire record on appeal and found no error or potential grounds for appeal. For the following reasons, we grant OSAD's motion to withdraw as counsel on appeal and affirm the judgment of the circuit court of St. Clair County.
¶ 3 BACKGROUND
¶ 4 On July 6, 2007, the State charged the defendant with unlawful possession of a stolen motor vehicle. The defendant was represented by attorneys P. Michael Read and Randall Kelly. On October 22, 2007, a jury trial began. In response to the court's inquiry, Read and Kelly stated that they had no doubt that the defendant was fit for trial. The defendant requested a continuance following the close of the State's case because one of his subpoenaed witnesses, Kenny Watson, who was present earlier in the day, was no longer present. The State had spoken briefly with Watson prior to his leaving. The court granted the continuance until the following morning. The next day, October 23, 2007, Watson did not appear despite efforts to locate him. Ultimately, the court granted the defendant a continuance until the following day. Prior to court's convening the following day, the sheriff's office and the defendant's counsel and investigator attempted to find Watson. Those attempts were fruitless. On October 24, 2007, the court denied the defendant's request for another continuance because the court concluded that there was no likelihood of the witness's being found. ¶ 5 During the trial there was evidence that the steering column had been tampered with in a manner indicating the vehicle was likely stolen. There was conflicting testimony concerning whether there was a glove on top of the steering column at the time of the stop as well as the location or existence of a screwdriver. The defendant testified. He denied knowing the vehicle was stolen or seeing the damage to the steering column. ¶ 6 During closing arguments, Watson appeared at the courthouse. The defendant moved for a mistrial due to the fact Watson failed to appear in time to testify. The court denied that motion. ¶ 7 When the court released the alternate juror, that juror indicated that one of the other jurors had made a statement indicating she was unhappy with the delays and just wanted to get to the point where they vote. The court denied the defendant's motion for mistrial based on the impatient juror. The jury returned a guilty verdict. ¶ 8 The defendant, through counsel, filed a posttrial motion. On December 19, 2007, the date of the sentencing hearing, the trial court denied the posttrial motion. After the sentencing hearing, during which the court admonished the defendant not to take other people's cars, the court sentenced the defendant to nine years' imprisonment. Counsel filed a motion to reconsider the sentence, and the defendant filed several pro se motions, one of which alleged ineffective assistance of counsel. ¶ 9 Read was allowed to withdraw and attorney Zina Cruse was appointed to represent the defendant. On March 27, 2008, a hearing was held regarding the outstanding motions. At that hearing Cruse indicated she would stand on the pleadings on file. She argued for a more lenient sentence. Cruse then adopted the arguments made previously by Read. ¶ 10 The defendant continued filing pro se motions. In one of his motions, the defendant attached an affidavit from Watson stating, in pertinent part, that he saw an individual give the car to the defendant. The defendant filed a notice of appeal on October 31, 2008. ¶ 11 On June 10, 2009, the defendant filed a motion entitled "posttrial motion reamend/addon." The defendant raised numerous points of error in this motion. ¶ 12 On June 18, 2009, this court held that the trial court did not properly advise the defendant of his appeal rights. We remanded the case to the trial court with instructions to properly admonish the defendant of his appeal rights and permit him to file appropriate motions and a new notice of appeal. People v. Cole, No. 5-08-0567 (2009) (unpublished order under Supreme Court Rule 23). ¶ 13 On remand, the circuit court informed the defendant of his appeal rights. At that hearing, the defendant inquired about the status of his pending posttrial motions. The circuit court informed him that given the directions from this court, those motions were premature. A new attorney, John Hipskind, was assigned to represent the defendant. Counsel filed a motion to reconsider the sentence. When the parties appeared in court on September 30, 2009, to argue the motion, the defendant sought to have Hipskind replaced. The court gave the defendant the choice of keeping Hipskind or proceeding pro se. Following the hearing, the circuit court denied the defendant's motion to reconsider sentence, directed the defendant's counsel to file a notice of appeal (second appeal), and ordered the defendant's June 10, 2009, motion be taken as a postconviction petition. Counsel filed a notice of appeal, and OSAD was appointed to represent the defendant in his appeal. ¶ 14 The defendant continued to file pro se motions both with this court and with the circuit court, raising additional arguments against his conviction and sentence. ¶ 15 On February 25, 2011, the defendant again filed a motion attacking his conviction in the trial court. The court construed that motion as a supplement to the June 10, 2009, postconviction petition. On May 27, 2011, attorney James Stiehl was appointed to represent the defendant on his postconviction petition. ¶ 16 On June 15, 2011, this court filed its decision in the defendant's second appeal. We noted that the defendant proceeded pro se on his appeal. Before this court, the defendant argued only that the charging instrument was defective and his counsel was deficient for failing to address the improper charging instrument. We affirmed. People v. Cole, No. 5-09-0544 (2011) (unpublished order under Supreme Court Rule 23). ¶ 17 On July 1, 2014, the defendant, through postconviction counsel, filed an amended motion for postconviction relief or in the alternative relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)). The issues raised in the amended petition all related to the defendant's belief that the charging instrument was void. The defendant also incorporated his arguments from his prior postconviction petitions. ¶ 18 On August 1, 2014, a third-stage hearing was held on the defendant's postconviction petition. The defendant testified about the things he believed had been done improperly at his trial. He reiterated his allegations but provided no facts. The defendant provided no information that was not part of the record, only information he knew about prior to his second appeal, where he represented himself. The circuit court found the defendant's testimony self-serving and unreliable. The State then moved for a directed verdict. The circuit court granted the State's motion for a directed verdict, denying the defendant's postconviction petition. ¶ 19 The defendant appeals from the denial of his postconviction petition.
In the early portion of the transcripts the potential witness is called Wallace, at all other times, the potential witness is referred to as Watson. --------
¶ 20 ANALYSIS
¶ 21 The Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2012)) allows a person convicted of a crime to "assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution." People v. Coleman, 183 Ill. 2d 366, 379 (1998). Evidence of the claim must be attached to the petition in the form of "affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." 725 ILCS 5/122-2 (West 2012). The Act provides a three-stage process for dealing with postconviction petitions. People v. Tate, 2012 IL 112214, ¶ 9. At the first stage the court determines if the petition is frivolous or patently without merit. People v. Edwards, 197 Ill. 2d 239, 244 (2001). If the court does not dismiss the petition as being frivolous or patently without merit, the petition moves to second-stage proceedings. People v. Hodges, 234 Ill. 2d 1, 10 (2009). At the second-stage of the proceeding, the State files an answer to the petition or a motion to dismiss. Id. at 10-11. When confronted with a motion to dismiss a postconviction petition, "the circuit court is concerned merely with determining whether the petition's allegations sufficiently demonstrate a constitutional infirmity which would necessitate relief under the Act." Coleman, 183 Ill. 2d at 380. At this stage of the proceedings the circuit court is not to engage in any fact finding. Id. at 380-81. All facts not rebutted by the record are accepted as true. People v. Hall, 217 Ill. 2d 324, 334 (2005). A third-stage "hearing is required whenever the petitioner makes a substantial showing of a violation of constitutional rights." Coleman, 183 Ill. 2d at 381. The court will grant postconviction relief if the defendant shows the denial of a constitutional right by a preponderance of the evidence. People v. Lego, 168 Ill. 2d 561, 577 (1995). ¶ 22 Additionally, res judicata and forfeiture apply to claims in a postconviction petition, and they are a valid basis for a trial court to dismiss a claim in a postconviction petition sua sponte. People v. Blair, 215 Ill. 2d 427, 442-44 (2005). Forfeiture is " 'the loss of a right, privilege, or property because of a crime, breach of obligation, or neglect of duty.' " Id. at 444 (quoting Black's Law Dictionary 677 (8th ed. 2004)). Finally, "we may affirm the circuit court's decision for any appropriate reason, regardless of whether the circuit court relied on those grounds and regardless of whether the circuit court's reasoning was correct." People v. Williams, 193 Ill. 2d 306, 349 (2000). ¶ 23 We affirm the circuit court for the single reason that, with one exception, every claim raised by the defendant in his postconviction petition is forfeited because he did not raise it in his second appeal, where he represented himself. The defendant presented no claim or evidence that was not known to him prior to his second appeal. Therefore, the defendant forfeited those arguments. The defendant's various arguments that the charging instrument was void because it did not name the car's owner are barred by res judicata because, in the second appeal, this court rejected the argument that the charging instrument was defective for failing to name the owner. We recognize that these are not the bases the circuit court relied on in its order denying the defendant's petition. Nevertheless, as described above, we can affirm the circuit court for any proper reason. ¶ 24 Despite the preceding paragraph, we briefly touch on the defendant's contentions of the constitutional rights he was denied in his trial. ¶ 25 The defendant raised numerous claims of ineffective assistance of trial counsel. An allegation of a violation of the constitutional right to effective assistance of counsel is evaluated under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Illinois by People v. Albanese, 104 Ill. 2d 504, 526-27 (1984). The standard has two prongs, both of which must be satisfied for a defendant to prevail on an ineffective-assistance-of-counsel claim. First, the defendant must show that his "counsel's representation fell below an objective standard of reasonableness, and that counsel's shortcomings were so serious as to deprive the defendant of a fair trial." (Internal quotation marks omitted.) Albanese, 104 Ill. 2d at 525. Second, the defendant must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Internal quotation marks omitted.) Id. ¶ 26 As the defendant made no argument that the outcome of his trial would have been different had the alleged errors not occurred, his allegations of ineffective assistance of trial counsel fail. Moreover, his claims of ineffective assistance of trial counsel are either conclusory and unsupported, or refuted by the record. ¶ 27 The defendant also argued that the police report was void. This claim is meritless, as police reports are not even evidence of wrongdoing. People v. Herndon, 2015 IL App (1st) 123375, ¶ 40. As police reports are not even evidence at trial, they cannot be "void," and the omission of particular detail from a police report does not violate the defendant's constitutional rights. ¶ 28 The defendant claimed that his constitutional rights were violated when the trial court failed to investigate further when the alternate juror advised the court that another juror had expressed impatience. The defendant did not attempt to explain how a juror's impatience violated his constitutional rights. Moreover, because the defendant presented no evidence supporting this claim, he failed to show that a constitutional violation occurred. ¶ 29 The defendant alleged a Batson (Batson v. Kentucky, 476 U.S. 79 (1986)) violation occurred. A Batson violation occurs when there is racial discrimination in the jury selection process. Id. In such a case, the defendant bears the burden of showing the State has excluded potential jurors on the basis of race. Id. at 95-96. In this case, the record is devoid of any evidence of the race of any of the potential jurors, and the defendant has not supplemented the record with any such evidence. Therefore, the defendant failed to carry his burden of making a prima facie case that a Batson violation occurred. ¶ 30 The defendant alleged that the State tampered with Watson. There is no evidence supporting this claim. The only evidence presented was that the State spoke with Watson briefly before he left and he advised the State as to what he was going to say. The defendant did not refute this. In fact, the defendant admitted that he did not know what the State told Watson. As such, the defendant failed to show that the State tampered with Watson. The defendant also argued that the State should have stipulated to Watson's affidavit or that the court should have taken judicial notice of the affidavit. The State is not required to stipulate to anything, and the affidavit is not something of which the court can take judicial notice. A judicially noticed fact must be one not subject to reasonable dispute and be either "generally known within the territorial jurisdiction of the trial court" or "capable of accurate and ready determination" using sources that cannot be questioned. Ill. R. Evid. 201(b) (eff. Jan. 1, 2011). Watson's testimony was subject to dispute and was not capable of ready determination. ¶ 31 The defendant argued that the circuit court's admonishment at sentencing that he should not steal cars is evidence of a violation of his constitutional rights. There is no law or rule prohibiting a judge from offering moral advice to a defendant. The court stated that it had considered the statutory factors in mitigation and aggravation, and the sentence imposed was well within the applicable sentencing range. As the defendant had a prior conviction of auto theft, it is not unreasonable for the court to admonish the defendant that he should not commit crimes he committed in the past. In fact, proper sentencing requires consideration of the defendant's criminal history. People v. Kelley, 2015 IL App (1st) 132782, ¶ 94. It is not, therefore, improper for the circuit court to discuss the defendant's criminal history. ¶ 32 The defendant alleged that the fact that two different people testified that they were the owners of the vehicle in question is a constitutional violation. Once again, there is no constitutional violation simply because there was conflicting testimony. This happens in many trials. That is why we have finders of fact, here the jury, to resolve conflicts in the evidence presented. Moreover, the defendant did not allege or prove that he suffered any prejudice. ¶ 33 The defendant argues that the State failed to take photos of the interior of the vehicle that would have supported his claim, and that the pictures used as evidence by the State were staged. The State has no duty to create evidence that the defendant would liked to have presented, and counsel objected to the photos the defendant claimed were staged and argued the matter in closing. Moreover the defendant's allegation that the State staged the photos it did take was not supported by any evidence in the defendant's postconviction proceedings. ¶ 34 The defendant argues his rights were violated because the circuit court forced him to use his currently appointed counsel or to proceed pro se on his motion for postconviction relief. This argument is meritless. Defendants are not entitled to choose their appointed counsel. People v. Smith, 111 Ill. App. 3d 494, 498 (1982). Moreover, Hipskind was the third attorney appointed to represent the defendant. At the outset of the September 30, 2009, hearing, the defendant told the circuit court that he wanted yet another attorney. The circuit court did not err in rejecting his request as it was "to the detriment of the orderly process of law." People v. Blaney, 324 Ill. App. 3d 221, 225 (2001). This argument provides no grounds for relief. ¶ 35 The remaining smattering of accusations by the defendant were conclusory and unsupported by the evidence. Therefore, there was no showing of a substantial violation of any constitutional right.
¶ 36 CONCLUSION
¶ 37 The circuit court properly denied the defendant's motions. OSAD's motion for leave to withdraw is granted, and the circuit court of St. Clair County's order is affirmed. ¶ 38 Motion granted; judgment affirmed.