Opinion
5-24-0355
12-05-2024
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 Champaign County. No. 21-CF-1226 Honorable Randall B. Rosenbaum, Judge, presiding.
JUSTICE WELCH delivered the judgment of the court. Presiding Justice McHaney and Justice Barberis concurred in the judgment.
ORDER
WELCH JUSTICE
¶ 1 Held: The circuit court did not err in summarily dismissing the defendant's postconviction because the issues raised in the petition could have been raised on direct appeal, and since any argument to the contrary would lack merit, the defendant's appointed appellate counsel is granted leave to withdraw, and the judgment is affirmed.
¶ 2 After a bench trial, the defendant, Kemion D. Dorris, was found guilty of being an armed habitual criminal. He was sentenced to imprisonment for 20 years. On direct appeal, this court affirmed the judgment of conviction. He now appeals from the circuit court's order that summarily dismissed his petition for postconviction relief. The defendant's appointed attorney on appeal, the Office of the State Appellate Defender (OSAD), has concluded that this appeal lacks arguable merit, and on that basis, it has filed with this court a motion to withdraw as counsel (see Pennsylvania v. Finley, 481 U.S. 551 (1987)), along with a memorandum of law in support of the motion. The defendant has filed with this court a pro se response to OSAD's motion. This court has considered the documents filed by OSAD and by the defendant, as well as the entire record on appeal, and has concluded that the Finley motion must be granted and the judgment of the circuit court must be affirmed.
¶ 3 BACKGROUND
¶ 4 In October 2021, the State filed an information charging the defendant with being an armed habitual criminal, a Class X felony. See 720 ILCS 5/24-1.7(a), (b) (West 2020). He was accused of possessing a firearm, specifically a 9-millimeter handgun, after having been convicted of burglary and unlawful possession of a weapon by a felon. The information also charged the defendant with four weapons-possession counts, but those four counts were ultimately merged, at sentencing, with being an armed habitual criminal. Those four counts will not be mentioned again.
¶ 5 The circuit court appointed the public defender to represent the defendant. A few months later, the defendant validly waived his right to counsel, and he proceeded pro se. A few weeks after the waiver of counsel, the defendant validly waived his right to a jury trial. The defendant subsequently moved to withdraw his jury waiver, but the court denied the motion.
¶ 6 On March 24, 2022, the State filed three motions in limine. The State's first motion in limine alleged that the defendant had not complied with the court's previous order relating to discovery. The first motion asked the court to order the defendant to disclose to the State (1) all the witnesses that he planned to call at trial, (2) all the affirmative defenses that he planned to rely upon at trial, and (3) all the evidence that he planned to present at trial, and if the defendant failed to disclose all this information by April 8, 2022, it asked the court to prohibit the use, at trial, of undisclosed witnesses, affirmative defenses, or evidence. The State's second motion in limine asked the court to prohibit the defendant from introducing, at trial, an affidavit for the purpose of proving the truth of the matter asserted. The State's third motion in limine asked that, in the event the defendant called Jasmine Epperson to testify at trial, the court allow the State to question Epperson about her relationship with the defendant.
¶ 7 On April 1, 2022, the court held a hearing on the State's three motions in limine. The hearing began with the defendant's making an oral motion to withdraw his jury waiver, and the judge's taking the motion under consideration. As to the State's three motions in limine, no evidence was presented, but the parties argued or otherwise discussed the motions. As to the State's first motion in limine, the defendant did not explicitly object to it (and he did not seem to object at all), and the court granted the motion. As to the second motion in limine, the State told the court that the affidavit the defendant intended to introduce at trial was written by Jasmine Epperson. The defendant explained that he wanted the court to consider Epperson's affidavit as proof of the truth of Epperson's statements therein. The court explained the concept of hearsay to the defendant and stated that it could not consider Epperson's affidavit absent some exception to the hearsay rule. The defendant then stated his intention to call Epperson as a witness at trial. The court granted the State's second motion in limine. As to the State's third motion in limine, the State explained the rationale behind it. According to the State, the defendant had a history of beating and intimidating Epperson, and if he called her as a trial witness, and if she testified in a manner favorable to him, the State wanted to cross-examine her about that violent history in order to show that her testimony was motivated by her fear of the defendant. The defendant argued that it did not "make sense" to suggest that Epperson was afraid of him. The court granted the third motion in limine.
¶ 8 The cause proceeded to a bench trial, which was held on three separate days from late July to early September of 2022. For its case in chief, the State presented certified copies of the defendant's criminal convictions for burglary in Champaign County case No. 16-CF-226 and for possession of a weapon by a felon in Champaign County case No. 19-CF-199. The defendant had no objection to these certified copies, and the court admitted them into evidence. The dispute at the defendant's trial was whether the defendant possessed the handgun as alleged in the information. The State proceeded to call various police officers, and other law-enforcement officers, as witnesses, and to introduce police body-camera videos and jailhouse telephone recordings. From the State's evidence, the following facts emerged.
¶ 9 On October 11, 2021, in the late afternoon, Champaign police officers arrived near the defendant's mother's home on Diana Avenue in Champaign, Illinois. They intended to arrest the defendant. They established a perimeter around the house, but after 20 minutes or so, they decided to approach the house. The defendant stuck his head out the door, and a police detective told him to step outside to talk. He did so. The defendant was dressed in a tank top and a pair of jeans or sweats. He was subsequently handcuffed. In the garage of the residence, the defendant asked a woman, later identified as Jasmine Epperson, for a kiss. The defendant leaned into Epperson and appeared to whisper something to her. Epperson was wearing a sweatshirt at the time. Meanwhile, a female resident of the house consented to its search. Shortly after the defendant's interaction with Epperson in the garage, investigations sergeant John Lieb was in the living room. Lieb saw a Nike sweatshirt lying on top of the couch. He approached the sweatshirt, but as he did so, Epperson also approached it. She was still wearing the sweatshirt that she wore in the garage. Lieb told Epperson to stop, but instead, she grabbed the sweatshirt from the couch. After a brief tussle, Lieb took this sweatshirt from Epperson, who subsequently left the residence. Once Lieb held the sweatshirt in his hands, he could feel that there was a handgun within it. Lieb then handed the sweatshirt to patrol sergeant Sean Ater, who was also in the living room. Ater subsequently gave the sweatshirt to another police officer at the residence. Inside the sweatshirt was a Smith & Wesson 9-millimeter pistol with a loaded magazine in it. The defendant was taken to the county jail and booked. While in jail, the defendant had a recorded telephone conversation in which he said that he had been caught with his pipe, but immediately amended his statement to "a pipe." "Pipe" is a slang term for gun.
¶ 10 On the pistol's magazine was a single latent thumbprint, which was found to be the defendant's. No suitable latent fingerprints were found on the pistol itself.
¶ 11 The defendant, age 24, testified on his own behalf. According to the defendant, he and Epperson were in a relationship, and a stormy one at that. Epperson had previously stabbed the defendant. On October 11, 2021, they were at the defendant's mother's house, in the garage. The weather was cold and raining. Epperson was wearing a sweatshirt, the same sweatshirt that Lieb eventually seized. The defendant told Epperson that he wanted to end their relationship. Epperson reached into her backpack, pulled out a gun, and said that she was going to shoot him and herself. Never before had the defendant seen that gun. He pleaded with Epperson not to shoot. She began to cry. The defendant thought that she was emotionally unstable due to the marijuana that they had recently smoked. Epperson pointed the gun at her own head and said that she would kill herself. The defendant tried to calm her down. Then, the magazine fell out of the gun. The defendant reached down and grabbed the magazine. She told him to put the magazine down or she would shoot. Unsure of whether the gun already had a bullet in it, the defendant threw the magazine to the floor. Epperson picked it up and put it back in the gun. He said that he would leave the residence, but she told him to go to the living room, to sit on the couch, and wait for his father. Not wanting to upset his family, he walked to the living room and sat on the couch. Through a window, he saw the police across the street. When he saw flashlights in the garage, he stood up and went outside. There, he encountered a police officer, who detained him. It was cold outside, and the defendant asked to be taken to the living room, but another officer said to take the defendant to the garage, instead. The gun seized by police at his mother's house was not his, the defendant testified.
¶ 12 On cross-examination, the defendant admitted that he "used a gun" in September 2021. He insisted that he acted in self-defense.
¶ 13 Both before and during the trial, the defendant sought to have the judge consider, for the truth of the matter asserted, the words of Jasmine Epperson in an affidavit and in a police bodycamera video. In the affidavit, Epperson stated that the sweatshirt, and the gun inside it, were hers. In the video, she said that the sweatshirt was hers. The defendant wanted the court to consider these statements as evidence that the sweatshirt, and the gun, truly were Epperson's. The court refused, stating that Epperson's out-of-court statements, intended to prove the truth of the matter asserted, would violate the rule prohibiting hearsay evidence at trials. The defendant, during the trial, stated on occasion that he wished to call Epperson as a witness, but he also stated on other occasions that he would not call her. In the end, the defendant stated that he did not need to have Epperson testify. He did not call any witnesses, other than a police witness previously called by the State.
¶ 14 The trial ended with the court's concluding that the State had established, beyond a reasonable doubt, that the defendant was guilty. The court commented that it was "a close case." The court found the State's witnesses credible and found the defendant incredible.
¶ 15 A presentence investigation report showed juvenile adjudications for robbery and criminal damage to property. It also showed that the defendant was on mandatory supervised release at the time of the instant offence. At a hearing in aggravation and mitigation, the State presented other-crimes evidence against the defendant, including evidence of domestic violence against Jasmine Epperson. The State recommended a sentence of imprisonment for 27 years. The defendant admitted possessing the gun. However, he explained that he needed the gun for self-protection because other people wanted to kill him due to his being a "snitch" in an unrelated murder case. He insisted that he was not a danger to the community. He loved his family and wished to improve himself and learn a trade. The defendant recommended a sentence of imprisonment for six years and "banishment" from Champaign-Urbana. For the offense of being an armed habitual criminal, the court sentenced the defendant to 20 years in prison, to be followed by 3 years of mandatory supervised release.
¶ 16 The defendant took a direct appeal to this court. He presented only one argument, namely, that the circuit court had abused its discretion when it denied the defendant's motion to withdraw his jury waiver. The defendant acknowledged that he had failed to raise this issue in his posttrial motion and therefore failed to preserve it for review, but he argued that the error was reviewable under the plain-error doctrine. This court concluded that there was no error whatsoever in denying the defendant's motion to withdraw his jury waiver and that the issue, indeed, was forfeited. The circuit court's denial of the defendant's motion was affirmed. People v. Dorris, 2024 IL App (5th) 220822-U.
¶ 17 While the direct appeal was still pending in this court-and specifically on December 4, 2023-the clerk of the circuit court file-stamped the defendant's pro se petition for postconviction relief. The postconviction petition was placed into the prison mail system on November 30, 2023. The postconviction petition focused on the first and second motions in limine that the State had filed on March 24, 2022, and it claimed that the circuit court's granting those two motions had deprived the defendant of his right to a fair trial. The defendant alleges that police body-camera recordings of Jasmine Epperson at the residence in Champaign, Illinois, and recordings of jailhouse telephone conversations between the defendant and Epperson, established that Epperson asserted ownership and possession of the gun at issue here, and that her assertion showed that the defendant was "actually innocent." The defendant sought vacatur of his conviction and sentence, and a new trial.
¶ 18 Attached to the postconviction petition were (1) copies of the State's three motions in limine, (2) a two-page excerpt from Champaign detective James Hobson's report that summarized jailhouse telephone conversations between the defendant and Jasmine Epperson, (3) a transcript of the April 1, 2022, hearing on the State's three motions in limine, and (4) a lengthy excerpt from the transcript of the bench trial.
¶ 19 On February 20, 2024 (just 78 days after the postconviction petition was file-stamped), the circuit court summarily dismissed the petition. The court found, inter alia, that the defendant did not raise a claim of constitutional dimension when he claimed that the court, prior to trial, had erred in granting the State's motions in limine, and that any issue regarding those motions could have been raised on direct appeal. The defendant timely filed a notice of appeal from that order.
¶ 20 ANALYSIS
¶ 21 This appeal is from the circuit court's summary dismissal of the defendant's postconviction petition. The summary dismissal of a postconviction petition is reviewed de novo. People v. Joiner, 2024 IL 129784, ¶ 20. With de novo review, this court may affirm on any basis supported by the record. People v. Walker, 2018 IL App (1st) 160509, ¶ 23.
¶ 22 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)) provides a procedural mechanism through which a criminal defendant may assert that his conviction resulted from a substantial violation of his federal or state constitutional rights. Id. § 122-1(a)(1); People v. Smith, 2015 IL 116572, ¶ 9. A proceeding under the Act is a collateral proceeding, not an appeal from the judgment of conviction. People v. English, 2013 IL 112890, ¶ 21. Issues that were decided on direct appeal or in previous collateral proceedings are barred by res judicata. People v. Pitsonbarger, 205 Ill.2d 444, 458 (2002). Issues that could have been raised earlier, but were not, are forfeited. People v. Blair, 215 Ill.2d 427, 443-44 (2005). A criminal defendant initiates a proceeding under the Act by filing a petition in the circuit court. 725 ILCS 5/122-1(b) (West 2022). "The petition shall *** clearly set forth the respects in which [the defendant's] constitutional rights were violated. The petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." Id. § 1222. The Act requires the circuit court to examine a defendant's postconviction petition, and enter an order thereon, within 90 days after the petition is filed and docketed. Id. § 122-2.1(a). A circuit court needs to determine within the 90-day timeframe whether it should summarily dismiss the defendant's petition as frivolous or patently without merit (id. § 122-2.1(a)(2)) or should order the petition to be docketed for further consideration (see id. § 122-2.1(b)).
¶ 23 As previously noted, the defendant's appointed appellate counsel, OSAD, has concluded that this appeal is meritless. This court agrees.
¶ 24 In his postconviction petition, the defendant claimed that the circuit court had abused its discretion when it granted the State's first and second motions in limine. According to the petition, the court deprived the defendant of due process, a fair trial, and "a real chance to present his side" at trial, when it granted those motions in limine, for these rulings prevented the defendant from offering into evidence the police body-camera recordings and the jailhouse telephone recordings, which would have established that Jasmine Epperson possessed the jacket, and the gun inside the jacket, and that the defendant was actually innocent of possessing the gun.
¶ 25 This issue easily could have been raised in the defendant's direct appeal. A hearing was held on the State's motions in limine on April 1, 2022. (A transcript of that hearing was a part of the record on direct appeal.) As OSAD remarks in its Finley memorandum, "[t]his claim is one that could have been raised on direct appeal and is therefore forfeited," citing People v. Barrow, 195 Ill.2d 506, 519 (2001). See also Blair, 215 Ill.2d at 443-44 (postconviction issues that could have been raised earlier are forfeited).
¶ 26 In his written response to OSAD's Finley motion, the defendant states that OSAD misinterpreted his postconviction petition. He asserts that "the main point" of the petition was that the trial judge refused to allow him to introduce Epperson's affidavit for the truth of what was asserted therein, i.e., that it was Epperson who possessed the sweatshirt and the gun in it. As the trial court itself remarked, that is "classic hearsay," and the court cannot consider hearsay during a trial, absent some exception to the rule. At one point during the trial, the defendant seemed to indicate that he understood this rule; he appears to have relapsed into ignorance of it. See generally Michael H. Graham, Handbook of Illinois Evidence § 801 (10th ed. 2010) ("Definition of Hearsay").
¶ 27 CONCLUSION
¶ 28 For the foregoing reasons, the circuit court did not err in summarily dismissing the defendant's postconviction petition. Any argument to the contrary would lack merit. Accordingly, OSAD is granted leave to withdraw as counsel on appeal, and the judgment of the circuit court is affirmed.
¶ 29 Motion granted; judgment affirmed.