Opinion
4-21-0586 4-21-0587
08-26-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHAD W. COMBS, 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 Scott County Nos. 17CF11, 18CF30 Honorable Christopher E. Reif, Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court. Justices Turner and Harris concurred in the judgment.
ORDER
ZENOFF, JUSTICE
¶ 1 Held: We grant the motion of the Office of the State Appellate Defender to withdraw as defendant's appellate counsel and affirm the trial court's dismissal of defendant's pro se postconviction petition.
¶ 2 Defendant, Chad W. Combs, appeals the trial court's first-stage dismissal of his pro se petition for postconviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). This court appointed the Office of the State Appellate Defender (OSAD) to represent defendant. The appellate defender filed a motion to withdraw as counsel, arguing defendant's appeal presents no potentially meritorious issues for review. We grant the motion and affirm the trial court's dismissal of defendant's postconviction petition.
¶ 3 I. BACKGROUND
¶ 4 The information in Scott County case No. 17-CF-11 charged defendant with theft (720 ILCS 5/16-1(a)(1) (West 2016)), alleging he knowingly exerted unauthorized control over a John Deere X720 riding lawn mower owned by Debbie D. Howard. Other documents showed Howard reported the missing mower to law enforcement. Defendant previously helped Howard around her property, but after the mower was taken, he quit calling and coming over. After executing a warrant at defendant's residence, law enforcement recovered the mower, along with some of Howard's personal property
¶ 5 The information in Scott County case No. 18-CF-30 (count II) charged unlawful possession of methamphetamine (720 ILCS 646/60 (West 2018)), alleging that, in November 2018, defendant possessed 35 grams of methamphetamine. The record shows a local mail carrier informed law enforcement of a package addressed to a residence where no one lived. The carrier delivered the package, while an officer watched. Defendant's brother picked up the package for defendant, which was found to contain methamphetamine. The next day, defendant met a confidential source in a Dollar General parking lot to pick up a package of methamphetamine. Once defendant had the package, police stopped him, conducted a search, and took him into custody.
¶ 6 On September 27, 2019, defendant pleaded guilty in case No. 17-CF-11 and in case No. 18-CF-30 (count II). In exchange, the trial court dismissed multiple "outstanding matters." The court admonished defendant of his rights to a jury trial, to confront witnesses, and to testify and verified he had reviewed his rights with trial counsel. Defendant affirmed he was satisfied with his counsel's representation. He also affirmed he understood the penalties and signed a memorandum detailing the possible sentences. Defendant was not under the influence of drugs or in need of any prescription medication. The court accepted the plea, finding it knowing and voluntary.
¶ 7 At the January 17, 2020, sentencing hearing, defendant again affirmed he was not under the influence of drugs or in need of medication. He affirmed he had ample opportunity to prepare for sentencing and discuss any offers from the State. Defendant said he was satisfied with his trial counsel's performance. Trial counsel stated she had reviewed the presentence investigation report (PSI) and discussed it with defendant. Both trial counsel and defendant affirmed the State had made offers that were declined.
¶ 8 In mitigation, trial counsel noted defendant participated in a rehabilitation program and never failed a drug screen. Defendant also assisted law enforcement in the arrest of four individuals. Defendant asked for mercy and the opportunity to show himself to be a good husband and father. The defense argued for seven years' incarceration for the unlawful possession of methamphetamine, consecutive to three years for theft. In aggravation, the State noted defendant's lengthy criminal history and recommended 20 years' incarceration for unlawful possession of methamphetamine, consecutive to 5 years for theft.
¶ 9 The court sentenced defendant to 15 years' incarceration for unlawful possession of methamphetamine, consecutive to 5 years for theft. The court admonished defendant of his appeal rights, including that, before taking an appeal, he must file within 30 days a written motion seeking to vacate the judgment and leave to withdraw the guilty pleas. He was also informed any issue or claim of error not raised in the motion to vacate the judgment and to withdraw the plea of guilty would be deemed waived on appeal.
¶ 10 Defendant did not file a motion to vacate the judgment and withdraw the plea. On February 18, 2020, trial counsel filed a motion to reconsider or reduce the sentence but later withdrew it. Defendant did not pursue a direct appeal.
¶ 11 On September 20, 2021, defendant filed a pro se postconviction petition challenging the judgment in both cases. In his petition, defendant made the following claims: (1) trial counsel "all but withdrew" from the case, giving him no other option but to enter an open guilty plea; (2) trial counsel failed to adequately meet with defendant, failed to investigate, and "ghosted" defendant after receiving payment; (3) sentencing guidelines were not provided in court, and trial counsel told defendant "in all likelihood" he would get seven years for the methamphetamine count and three years for theft; (4) trial counsel failed to consult with defendant and prepare for the PSI, and he was not subjected to a mental evaluation; (5) trial counsel failed to call character witnesses to testify at sentencing; (6) a public defender in another case had a conflict of interest because he also represented an accused in a case in which defendant was an informant; (7) defendant should have been recommended for drug treatment under the plea bargain; (8) he should receive 196 days of sentencing credit on each count; (9) the sentences were disproportionate to other similar cases; and (10) he was denied a direct appeal. No affidavits were attached to the petition.
¶ 12 On September 22, 2021, the court dismissed the petition. The court noted the petition did not contain any affidavits, found the claims had no arguable basis in law or fact, and observed the record contradicted most of the claims. Defendant appealed, and this court appointed OSAD as appellate counsel. We consolidated the appeals.
¶ 13 II. ANALYSIS
¶ 14 The appellate defender moves to withdraw as counsel. In her motion, counsel states she read the record and found no issue of arguable merit. Counsel further states she advised defendant of her opinion. Counsel supports her motion with a memorandum of law providing a statement of facts, a list of potential issues, and arguments why those issues lack arguable merit. We advised defendant he had until March 8, 2022, to respond to the motion. Defendant did not respond.
¶ 15 We agree with counsel this appeal presents no nonfrivolous issues. First, counsel submits it would be frivolous to argue the trial court failed to comply with the procedural requirements of the Act when it dismissed the petition. Counsel then submits the underlying claims in the petition are frivolous and patently without merit.
¶ 16 The Act provides a remedy to criminal defendants who demonstrate a violation of their constitutional rights. 725 ILCS 5/122-1 et seq. (West 2018). At the first stage of a postconviction proceeding, the trial court must determine whether the petition is frivolous or patently without merit. Id. § 2-2.1(a)(2). "[A] pro se petition seeking postconviction relief under the Act for a denial of constitutional rights may be summarily dismissed 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 (2009). 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. A petition lacks an arguable legal basis when it is based on an indisputably meritless legal theory, such as one that is completely contradicted by the record. Id. at 16.
¶ 17 At the first stage, the allegations in the petition, when taken as true and liberally construed, must present the gist of a constitutional claim. People v. Hatter, 2021 IL 125981, ¶ 24. "Thus, to survive summary dismissal, a petitioner is only required to include a limited amount of detail and need not present formal legal arguments or citations to legal authority." Id. ¶ 24. "A pro se petitioner is not excused, however, from providing any factual detail at all surrounding the alleged constitutional violation." Id.
¶ 18 "An allegation in a postconviction petition must be based on factual allegations and not mere conclusory statements." People v. Ivy, 313 Ill.App.3d 1011, 1019 (2000). The petition must be both (1) verified by affidavit and (2) supported by "affidavits, records, or other evidence supporting its allegations," or, if not available, the petition must explain why. 725 ILCS 5/122-2 (West 2018); People v. Collins, 202 Ill.2d 59, 65 (2002). Generally, noncompliance with section 122-2 is fatal to a postconviction petition and justifies the petition's summary dismissal. Id. at 66.
¶ 19 If a postconviction petition is found to be frivolous or patently without merit, a trial court may summarily dismiss it within 90 days of its filing. People v. Edwards, 197 Ill.2d 239 (2001). Our review of the first-stage dismissal of a postconviction petition is de novo. People v. Dunlap, 2011 IL App (4th) 100595, ¶ 20.
¶ 20 Here, the appellate defender correctly notes the trial court dismissed the petition as frivolous and patently without merit within the 90-day period. Counsel next submits that all underlying claims in the pro se postconviction petition are frivolous and patently without merit. We agree.
¶ 21 A. Allegations Counsel Failed to Consult and Investigate
¶ 22 Defendant claimed his trial counsel "essentially withdrew" from his case, leaving the guilty pleas as his only option. Defendant also claimed trial counsel met with him for only two hours, "ghosted" him after receiving payment, and failed to investigate his case. However, defendant's allegations are contradicted by the record. At the guilty plea hearing, defendant affirmed he discussed his case with trial counsel and was satisfied with her representation. The record also contradicts defendant's claim trial counsel "all but withdrew" from his case. To the contrary, trial counsel was present for hearings, argued on defendant's behalf, and filed a posttrial motion. Finally, defendant does not detail what evidence would have been discovered through further investigation. Thus, this claim is conclusory and contradicted by the record.
¶ 23 B. Trial Counsel's Sentencing Advice
¶ 24 Defendant argued trial counsel was ineffective for stating defendant would likely be sentenced to an aggregate 10-year prison sentence and further, "no guidelines was said in open court, on the record at sentencing." However, defendant acknowledged at his guilty plea hearing he signed a "penalty spreadsheet" detailing the possible penalties in each of his cases. While trial counsel recommended the court impose a 10-year sentence, defendant confirmed at his sentencing hearing he had been advised of "all the possible penalties" and understood them. Moreover, the court found defendant's plea knowing and voluntary. Defendant cannot now argue his counsel was ineffective for failing to make a better estimate of his likely aggregate sentence. Accordingly, defendant's claim is patently without merit and is also contradicted by the record.
¶ 25 C. Preparation of the PSI
¶ 26 Defendant next claimed trial counsel "failed to prepare for the PSI." He argued the PSI took 3.5 months to prepare and he and his family were not invited to help prepare the PSI. Defendant also argued he should have had a "mental evaluation" and trial counsel did not review the PSI with defendant until 10 minutes before the sentencing hearing. The record contradicts defendant's assertions. At the sentencing hearing, defendant confirmed he had "ample opportunity" to prepare for sentencing and was satisfied with the services provided by trial counsel. Trial counsel confirmed she had ample time to review the PSI. Counsel advised she had received the PSI three days earlier (January 14, 2020), and she discussed the PSI with defendant both that afternoon and before the sentencing hearing on January 17, 2020. Defendant did not explain his need for a mental evaluation, and nothing in the record suggests a concern for defendant's fitness or overall mental state. Accordingly, defendant's claims are contradicted by the record, and his conclusory assertions are insufficient to advance his petition to the second stage of review.
¶ 27 D. Failure to Call Character Witnesses at Sentencing.
¶ 28 Defendant argued he was unable to call various character witnesses to testify on his behalf at sentencing because he was picked up from jail for sentencing with insufficient time for anyone other than family members who "lived close" to attend. However, defendant merely provided conclusory statements about the proposed character testimony and failed to include affidavits detailing the proposed testimony. Further, whether to call witnesses at sentencing is generally a matter of trial strategy. See People v. Edwards, 195 Ill.2d 142, 174 (2001). Thus, it would be frivolous for counsel to argue this claim had merit.
¶ 29 E. Conflict of Interest
¶ 30 Defendant claimed a public defender, assigned to a case the trial court dismissed in exchange for defendant pleading guilty, had a conflict of interest because the public defender also represented an accused in a case in which defendant was an informant. However, this claim is patently without merit because any issue regarding a conflict of interest was rendered moot once the case was dismissed. See People v. Mena, 337 Ill.App.3d 868, 871 (2003) (stating an issue is moot when events occur which make it impossible for the court to grant effectual relief). Further, the claim is irrelevant to the convictions in the cases on appeal.
¶ 31 F. Substance Abuse Treatment
¶ 32 Defendant argued the trial court failed to recommend substance abuse treatment when it was part of the plea bargain, "as promised by counsel." The court ultimately did not recommend substance abuse treatment. Defendant's claim that such a recommendation was part of the plea bargain is contradicted by the record because defendant entered a plea with no agreement as to sentencing. The record further shows defendant understood the plea and was provided with, and understood, the possible sentencing implications.
¶ 33 G. Sentencing Credit
¶ 34 Defendant argued he should have been given 196 days of presentence custody credit "on each count." The parties agreed at sentencing he was entitled to 196 days of presentence custody credit, which included 90 days he spent in an adult rehabilitation center. The court granted the credit. Consecutive sentences are treated as a single term of imprisonment. People v. Latona, 184 Ill.2d 260, 271 (1998). Thus, a defendant who receives consecutive sentences should receive only one credit for each day spent in custody as a result of the offense or offenses for which he or she is ultimately sentenced. Id. Accordingly, because defendant received the proper amount of credit, this claim is patently without merit.
¶ 35 H. Disproportionate Sentence
¶ 36 Defendant argued his sentence was disproportionate to other similar cases. However, his allegation was conclusory, as he failed to provide examples of relevant other cases. Further, a trial court is not required to justify its sentence in relation to the sentences imposed in other cases, and a defendant cannot attack a sentence on the basis a defendant in a separate, unrelated case received a lighter sentence. People v. Fern, 189 Ill.2d 48, 62 (1999). Thus, this issue is patently without merit.
¶ 37 I. Opportunity to Pursue a Direct Appeal
¶ 38 Finally, defendant claimed he asked for a direct appeal. Under Illinois Supreme Court Rule 604(d) (eff. July 1, 2017), "[n]o appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw the plea of guilty and vacate the judgment." An exception applies when the trial court fails to substantially admonish the defendant of the Rule 604(d) requirements. People v. Merriweather, 2013 IL App (1st) 113789, ¶ 17.
¶ 39 Here, defendant filed a motion to reconsider his sentence but then withdrew the motion. Thus, he abandoned his appeal rights. Further, the trial court complied with the rule by substantially advising defendant of his rights. Counsel correctly notes the court did not admonish defendant he could move to reconsider his sentence, but defendant suffered no prejudice from that omission because counsel filed a timely motion to reconsider defendant's sentence. Accordingly, this issue is patently without merit.
¶ 40 III. CONCLUSION
¶ 41 After examining the record, the motion to withdraw, and the memorandum of law, we agree with counsel this appeal presents no issue of arguable merit. Accordingly, for the reasons stated, we grant the motion to withdraw as appellate counsel and affirm the circuit court's judgment.
¶ 42 Affirmed.