Opinion
Appeal No. 3-13-0718
06-04-2015
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN S. COX, 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 the 14th Judicial Circuit, Whiteside County, Illinois,
Circuit No. 12-CF-163
Honorable Stanley B. Steines, Judge, Presiding.
JUSTICE CARTER delivered the judgment of the court.
Presiding Justice McDade and Justice O'Brien concurred in the judgment.
ORDER
¶ 1 Held: Defendant's postconviction petition was properly dismissed at the first stage of postconviction proceedings where the petition's claims were rebutted by the record.
¶ 2 Defendant, Martin S. Cox, appeals from the summary dismissal of his pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). On appeal, defendant asserts that his guilty plea was involuntary as the result of ineffective assistance of counsel. We affirm, concluding that the petition's claims were rebutted by the
record.
¶ 3 FACTS
¶ 4 Pursuant to a plea agreement that was open as to sentencing, defendant pled guilty to one count of unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(1) (West 2012)) and one count of unlawful possession of a controlled substance (720 ILCS 570/402(a)(2)(A) (West 2012)). The trial court imposed two concurrent sentences of 20 years' imprisonment. Defendant did not file a motion to reconsider, nor did he pursue a direct appeal.
¶ 5 Defendant filed a pro se petition for postconviction relief. In it, defendant raised several theories that his guilty plea was involuntary and resulted from ineffective assistance of counsel. The trial court summarily dismissed the petition, finding that defendant's claims were belied by the facts in the record and by the applicable case law.
¶ 6 ANALYSIS
¶ 7 On appeal, defendant argues that his petition raised the gist of a constitutional violation, and, as a result, the trial court should have advanced the petition to the second stage of postconviction proceedings. Specifically, defendant argues that the following claims raised the gist of a claim of ineffective assistance of counsel: (1) counsel failed to file a motion to suppress statements that defendant made to police; (2) counsel erroneously advised defendant that his present sentences would run concurrently to any sentence he received from a pending criminal charge in Indiana; and (3) counsel failed to file a motion to substitute judge despite counsel's statements to defendant that defendant could not receive a fair trial before the judge because of his racial bias. We reject all three claims.
¶ 8 The Act provides a three-stage process for adjudicating postconviction petitions. People v. Harris, 224 Ill. 2d 115, 125 (2007). At the first stage, the court independently assesses the merit of the petition. 725 ILCS 5/122-2.1 (West 2012). If the court finds the petition to be "frivolous" or "patently without merit," the court shall dismiss the petition. 725 ILCS 5/122-2.1(a)(2) (West 2012). A petition is frivolous or patently without merit when its allegations, taken as true and liberally construed, fail to present the gist of a constitutional claim. Harris, 224 Ill. 2d at 126. At the first stage of postconviction proceedings, the circuit court must take the petition's factual allegations as true, unless those allegations are contradicted by the record. People v. Coleman, 183 Ill. 2d 366, 382 (1998).
¶ 9 1. Motion to Suppress
¶ 10 Defendant's petition alleged that after being arrested and taken into custody at the Sterling police department, defendant twice asserted his right to remain silent and his right to counsel. Despite the assertion of his rights, police interrogated defendant and elicited inculpatory statements from him. On appeal, defendant claims that he did not receive the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), and thus counsel was ineffective for advising defendant to pursue a guilty plea rather than filing a motion to suppress defendant's statements. The record rebuts this claim.
¶ 11 At the plea hearing, the State recited a factual basis for the charges against defendant. The State explained, "the Defendant was mirandized and he gave a statement indicating that he was selling drugs for another individual who he identified by the name of baby." When asked by the court whether he agreed that the factual basis reflected the evidence that would be produced at trial, defendant answered, "Yes, sir." Defendant's allegation that he did not receive the appropriate Miranda warnings is therefore rebutted by the record.
¶ 12 2. Impact on Indiana Sentences
¶ 13 Defendant argues that counsel was ineffective for erroneously advising him that his sentences in the present case would run concurrently to any sentence he might receive on a pending charge in Indiana. Defendant's claim is unsupported by his petition and his brief on appeal.
¶ 14 A petition "shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." 725 ILCS 5/122-2 (West 2012). Defendant's petition includes no supporting documentation to establish that he has actually received a criminal sentence in Indiana or that any such sentence will run consecutively to the sentences in the present case. Nor does the petition or defendant's appellant's brief cite any legal authority for the proposition that a potential Indiana sentence will run consecutively to defendant's present sentences. Failure to attach the necessary affidavits is fatal to a petition and justifies its dismissal. People v. Collins, 202 Ill. 2d 59, 66 (2002).
¶ 15 3. Alleged Bias of Judge
¶ 16 Defendant's petition alleged that defendant was African-American and counsel informed defendant that Judge Steines had a racial bias and would impose the maximum sentence if defendant was found guilty after trial. The only factual support that defendant includes to support this claim is defendant's own affidavit. The affidavit claimed that counsel told defendant that "Judge Stanley Steines hated black people; especially drug dealers, and that [defendant] would receive the maximum sentence" if found guilty at trial. On appeal, defendant argues that counsel was ineffective for failing to request that the judge be removed from the case, rather than encouraging defendant to plead guilty. Defendant's claim is contradicted by the record.
¶ 17 Defendant entered a guilty plea that was open as to sentencing. The two counts to which defendant pled guilty were enhanced Class 1 felonies, for which the maximum sentence was 30 years' imprisonment. 720 ILCS 570/408(a) (West 2012). The court sentenced defendant to 20 years on each count, significantly less than the maximum available sentence. This belies defendant's assertion that counsel advised that defendant would receive the maximum sentence after trial because of his race. If defendant's allegation were true, we would expect that the court would have imposed the maximum sentence regardless of whether defendant pled guilty or proceeded to trial. We also note that defendant's assertion is supported only by defendant's self-serving affidavit and not by an affidavit of counsel confirming counsel's alleged statements.
¶ 18 CONCLUSION
¶ 19 The judgment of the circuit court of Whiteside County is affirmed.
¶ 20 Affirmed.