Opinion
NO. 4-19-0484
05-13-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD L. EMERY, Defendant-Appellant.
NOTICE
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. 15CF30
Honorable William A. Yoder, Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court.
Presiding Justice Knecht and Justice Turner concurred in the judgment.
ORDER
¶ 1 Held: The appellate court affirmed the trial court's judgment because defendant failed to state the gist of a constitutional claim.
¶ 2 In July 2015, defendant, Donald Emery, pro se entered an open plea of guilty to a single count of unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West 2014)), and the State dismissed his remaining counts which included two counts of criminal drug conspiracy (id. § 405.1) and one count of unlawful delivery of a controlled substance (id. § 401(d)(i)). The trial court sentenced defendant to 18 years in prison.
¶ 3 In April 2019, defendant filed a petition for postconviction relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). Defendant claimed that he was actually innocent because the State failed to disclose a compact disc (CD) containing a recording of the confidential source's (CS) purchase of drugs on January 8, 2015, and that
recording showed he was actually innocent.
¶ 4 In June 2019, the trial court dismissed defendant's petition at the first stage of proceedings.
¶ 5 Defendant appeals, arguing that his petition for postconviction relief set forth the gist of a constitutional claim and this court should reverse and remand because the recording "rebuts any suggestion that [defendant] participated during the alleged controlled buy on January 8, 2015." Defendant argues that (1) he is actually innocent and (2) the State committed a violation of Brady v. Maryland, 373 U.S. 83 (1963) by failing to provide him the recording. We disagree and affirm.
¶ 6 I. BACKGROUND
¶ 7 A. Procedural History
¶ 8 In January 2015, the State charged defendant with two counts of criminal drug conspiracy (720 ILCS 570/405.1 (West 2014)), alleging that he agreed with his codefendant, James Patterson, to deliver a controlled substance. The State also charged defendant with two counts of unlawful delivery of a controlled substance, alleging that he delivered less than one gram of cocaine to (1) a CS and (2) James Patterson. Id. § 401(d)(i).
¶ 9 Later that month, the State filed its discovery response pursuant to Illinois Supreme Court Rule 412 (eff. Mar. 1, 2011). In that response, the State noted that physical evidence included, among other items, a "DVD of in-person overhear between James Patterson and Confidential Source 1138," a "DVD of interviews of Mathis, Johnson, Patterson and [defendant]," and a "CD of jail calls."
¶ 10 In February 2015, a complaint for a search warrant was filed in which Detective Jared Bierbaum sought to search, among other things, defendant's cellular phone. In the complaint,
Bierbaum described how, in January 2015, the CS set up a controlled buy with Patterson and Patterson directed the CS to a residence at 607 East Jefferson in Bloomington. The complaint stated the following:
"Upon arrival CS 1138 was told by defendant JAMES PATTERSON that 'his guy' was on his way over with the crack cocaine that had been ordered. A short time later a car arrived and at that time defendant JAMES PATTERSON went to the car that had arrived. Defendant JAMES PATTERSON exited the car a short time later and the controlled buy transaction then occurred with CS 1138 after the purported crack cocaine had been obtained from 'his guy' in the car that had just arrived. *** The purchase price for the purported crack cocaine was $80 and the buy money used in the controlled buy transaction had been pre-recorded for evidentiary purposes. CS 1138 then left the 607 East Jefferson residence after the controlled buy transaction occurred. Defendant JAMES PATTERSON then left and returned to the car that left the area. A traffic stop was conducted shortly after that and defendant JAMES PATTERSON was arrested for the controlled buy transactions. The driver of the car at that time was positively identified as DONALD EMERY ***. Defendant DONALD EMERY was found in possession of $60 of the pre-recorded buy money."
¶ 11 B. The Guilty Plea
¶ 12 In July 2015, the trial court conducted defendant's guilty plea hearing, at which defendant appeared pro se. The court admonished defendant regarding the possible penalties he faced and explained that because he was entering into an open plea, there was no agreement that defendant would receive a particular sentence. The court further explained the rights defendant
was giving up by pleading guilty.
¶ 13 As a factual basis for the plea, the prosecutor said the following:
"Your Honor, this was a police department investigation on January 8th of 2015. At that time, confidential source 1138 made a purchase of a cocaine directly involving the Defendant James Patterson, and likewise the coconspirator, Defendant Donald Emery. Arrangements were made through the telephone of James Patterson and at that time the codefendant [Patterson] directed [CS] to [an] apartment residence where the transaction occurred. Upon arrival at that location, the informant indicated—was indicated to by Mr. Patterson as, guy was on his way. Surveillance confirmed the individual arrived who was confirmed to be Donald Emery. The transaction was $80. It did indicate positive for presence of cocaine. It was less than a gram. Joni Little confirmed that it was a substance containing cocaine with the Illinois State Police lab who did the forensic analysis.
So, basically, afterwards the defendant was stopped, no valid license and both were arrested. This defendant had $60 of the buy money, and James Patterson had $20 of the buy money; and, likewise, the Defendant Patterson had the cellphone consistent with the investigation. That's who the order was placed with that the defendant assisted in and was involved in. Thank you, Your Honor."
¶ 14 Defendant agreed that he believed the State could present that evidence and made no mention of any difficulty regarding discovery. Defendant pleaded guilty to the count that alleged he delivered to the CS less than a gram of cocaine. The State then dismissed the remaining counts.
¶ 15 C. The Sentencing Hearing
¶ 16 In August 2015, the trial court conducted defendant's sentencing hearing, at which defendant proceeded pro se. The State argued that a 26-year sentence was appropriate because of defendant's prior felony convictions, which required the court to impose a Class X sentence. Defendant argued that (1) Patterson was the one dealing the drugs and (2) he was simply with the wrong people at the wrong time. Defendant further argued that 26 years was too much because his actions did not hurt anyone. Defendant argued he should receive an eight-year prison sentence. The court sentenced defendant to 18 years in prison.
¶ 17 D. The Motion To Withdraw Guilty Plea
¶ 18 Defendant pro se filed a motion to withdraw his guilty plea, and the trial court conducted a hearing on that motion in March 2016. In his motion, defendant argued that (1) he did not fully understand his plea, (2) his plea was involuntary, and (3) he was innocent of the charges. At the hearing, defendant proceeded pro se. He attempted to submit police reports as exhibits, but the trial court did not allow him to do so because they were incomplete and contained inadmissible hearsay. The court also prohibited defendant from submitting an affidavit from Patterson because it was inadmissible hearsay.
¶ 19 Defendant argued that (1) he did not understand that the charge could be applied to him based on the theory of accountability and (2) the State had to prove he aided or abetted Patterson in the commission of the offense. In denying defendant's motion, the trial court concluded that (1) defendant was not threatened or coerced to enter his guilty plea and (2) the record showed he understood the charge.
¶ 20 Defendant appealed and argued pro se that (1) the trial court abused its discretion by excluding the police reports and the affidavit, (2) the trial court erred by denying his motion to
withdraw his guilty plea, (3) his due process rights were violated, and (4) the State committed prosecutorial misconduct before the grand jury. In January 2017, this court concluded that the trial court properly denied defendant's motion to withdraw his guilty plea and affirmed. People v. Emery, 2017 IL App (4th) 160175-U.
¶ 21 E. The Petition for Relief From Judgment
¶ 22 In July 2017, defendant pro se filed a petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2016)). In that petition, he alleged that he should be allowed to withdraw his guilty plea because he did not receive exculpatory audio/video evidence from the State in discovery, referring to the recording at issue in this case. Defendant contended that on March 24, 2014, the trial court ordered discovery to be tendered to him. The State sent him discovery, but the United States Postal Service was unable to deliver the "audio/visual cds" to defendant while he was in prison. Defendant claimed the evidence was returned to the State, and the State then knowingly withheld the evidence. He claimed that because of this alleged discovery violation, he had no alternative but to plead guilty to a crime he did not commit.
¶ 23 In April 2018, the trial court sua sponte entered an order in which it concluded that defendant's petition did not include "any facts as to what the audio/video evidence contained, or how that evidence 'clears' petitioner from guilt, blame, or fault for the charge he [pleaded] guilty to." The court noted that prior to filing the petition, defendant never expressed to the court any problems with the State's compliance with discovery. The court stated that it had reviewed the record, which "indicate[d] that the petitioner was properly admonished by the court as to the charge he was pleading guilty to, the possible penalties for that charge, and the trial rights he was waiving by entering a plea of guilty." The court determined that the allegations in the petition did not
provide a legal basis for relief and dismissed the petition.
¶ 24 Following the trial court's dismissal, defendant appealed, and the court appointed the Office of the State Appellate Defender (OSAD) to represent defendant on that appeal. OSAD moved to withdraw, contending that there were no potentially meritorious issues for review. In doing so, OSAD considered the following claims: (1) whether defendant's discovery violation had any arguable merit and (2) whether the trial court's sua sponte dismissal of defendant's petition was appropriately timed after the 30-day period for the State to answer or otherwise plead.
¶ 25 This court granted OSAD's motion to withdraw and affirmed the trial court. People v. Emery, 2020 IL App (4th) 180339-U. We described our reasons for doing so as follows:
"Defendant's petition did not suggest what the video would show with any specificity. While defendant has iterated on multiple occasions his belief that this evidence is helpful to him, he made no claims as to what the evidence specifically contains. This was important to the trial court, which stated, 'notably missing from the allegations of the petition are any facts as to what the audio/video evidence contained, or how that evidence "clears" petitioner from guilt, blame, or fault for the charge he plead guilty to.' Without these facts, we conclude that the defendant has failed to show that the evidence was exculpatory or impeaching. Similarly, we conclude that because defendant did not state what the evidence contains, we cannot conclude that defendant was prejudiced." Id. ¶ 36.
¶ 26 F. The Postconviction Petition
¶ 27 In April 2019, defendant filed of a petition for postconviction relief pursuant to the Act. Defendant claimed that he was actually innocent because the State failed to disclose a CD containing a recording of the CS's purchase of drugs on January 8, 2015, and that recording
showed he was actually innocent.
¶ 28 Defendant explained that in April 2017, he had retained an attorney to obtain videos that he was unable to view prior to entering his guilty plea. The attorney was able to obtain a copy of the video and proposed a means of playing it for defendant. However, defendant was unable to pay the attorney to bring the video to the prison facility where he was housed. More than a year later, defendant reached an agreement with the attorney to transcribe the content of the video, which recorded the CS's interaction with Patterson.
¶ 29 That transcription of the discussion between Patterson and the controlled source read as follows:
"[CS]: Hoo god. .... Oh shit... Fuck.
[Patterson]: What's up? Give me 80 ??.
[CS]: 80?
[Patterson]: You're here to give me shit?
[CS]: That's fine. That's fine.
[Patterson]: You have any ??? on you or no?
[CS]: I don't. I'm not ... I got... all my money.
[Patterson]: ???
[CS]: Oh did ya? Fifty, sixty, seventy, eighty, here you go.
[Patterson]: Sixty, seventy, eighty
[Patterson]: Count it
[unintelligible]
[Patterson]: Need something so you don't spill out?
[CS]: yeah, so I don't spill out. I did, can't show it. Got a light? Hard to see.
Ok. Here you go.
[Patterson]: Sweet. Thank you.
[CS]: You're welcome. Let's fill it.
[Patterson]: He's like, 'I gotta go.' I said, 'Boy you can trust me with it motherfucker.' I said, 'You can just come back and get your money.' He was like, 'Alright?'
[CS]: Ha ha. Yeah? Probably just paranoid, huh? Don't gotta worry about me. I'll fricken follow you. Alright. Ok. That's that."
¶ 30 Defendant also alleged that a grand jury was told that Patterson notified the CS that "his guy or supplier" was on the way with the crack and "that a short time later an individual who was identified as [defendant] arrived in a car and that [Patterson] went to the car and obtained drugs from [defendant] and then provided those drugs directly to the CS."
¶ 31 In his postconviction petition, defendant noted the findings the trial court made when denying his earlier motion to withdraw guilty plea. At that hearing, the court stated the following:
"To me, the key here, is the fact that Mr. Patterson, as he's making these arrangements with the CS, says that his guy's on the way; that you then arrive and that the transaction then takes place. Now, again, while that could have probably been fleshed out a little bit better and in more detail, the Court understands what that means. The Court understands that it means that the—that Mr. Patterson was waiting for his source with the cocaine to arrive, that you then arrived, that he was then able to make the deal. Those facts are sufficient to support proof of guilt as you now understand."
¶ 32 Defendant contends that he now has evidence—the recording—that was not available to him at the time of the proceeding that resulted in his conviction that establishes a substantial basis to believe that he is actually innocent.
¶ 33 Defendant argued in his postconviction petition that (1) his due process rights were violated because he was falsely accused of committing a crime and (2) his conviction was based on false information and false charges. Defendant also contended that the State violated its duty to disclose exculpatory evidence.
¶ 34 Defendant filed a supplemental petition and attached a CD recording of the CS's purchase.
¶ 35 In June 2019, the trial court dismissed defendant's petition at the first stage of proceedings. The court said, "The Illinois Supreme Court has ruled in People v. Cannon, 46 Ill. 2d 319, 263 N.E.2d 45 (1970)[,] that a defendant's [postconviction] claim of actual innocence cannot be entertained where before a plea of guilty was accepted, the defendant, represented by appointed counsel, was fully and carefully admonished by the trial judge." The court further concluded that a guilty plea waives all non-jurisdictional defenses or defects, including a claim of actual innocence.
¶ 36 II. ANALYSIS
¶ 37 Defendant appeals, arguing that his petition for postconviction relief set forth the gist of a constitutional claim and this court should reverse and remand because the recording "rebuts any suggestion that [defendant] participated during the alleged controlled buy on January 8, 2015." Defendant contends that (1) he is actually innocent and (2) the State committed a Brady violation by failing to provide him with the recording. We disagree and affirm.
¶ 38 A. Actual Innocence Claims Are Not Waived Because a Defendant Pleaded Guilty
¶ 39 As an initial matter, we note that the trial court concluded that defendant's guilty plea waived his claim of actual innocence, purportedly relying on Cannon and this court's decision in People v. Reed, 2019 IL App (4th) 170090, 125 N.E.3d 480. In Reed, this court analyzed Cannon and summarized the Illinois Supreme Court's conclusion as follows: "Rather, the paragraph concludes that because the defendant was (1) was represented by counsel in the guilty-plea hearing and (2) fully and carefully admonished by the trial judge, his postconviction claim of actual innocence 'cannot be entertained.' " Id. ¶ 19.
¶ 40 However, in December 2020 the Illinois Supreme Court reversed this court's decision in Reed. (We note that this was after the trial court's order dismissing defendant's petition, which was signed in June 2019.) The Illinois Supreme Court wrote the following:
"This court refuses to turn a blind eye to the manifest injustice and failure of our criminal justice system that would result from the continued incarceration of a demonstrably innocent person, even where a defendant pleads guilty. [Citation.] Accordingly, we find defendants who plead guilty may assert an actual innocence claim under the Act." People v. Reed, 2020 IL 124940, ¶ 41.
¶ 41 Following the Illinois Supreme Court's decision in Reed, we conclude that defendant's postconviction claim is not barred merely because he pleaded guilty. Nonetheless, for the reasons that follow, we conclude that because defendant's claims have no arguable basis in fact, the trial court did not err by dismissing defendant's postconviction petition at the first stage.
¶ 42 B. Review of First-Stage Dismissal of a Postconviction Petition
¶ 43 The Act provides a three-step process for determining whether a defendant was denied his constitutional rights. 725 ILCS 5/122-1 et seq. (West 2018). Within the first 90 days after the petition is filed and docketed, the trial court shall dismiss a petition summarily if the court
determines it is "frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2018). "A petition may be dismissed as frivolous or patently without merit only if the petition has no arguable basis either in law or in fact." People v. Fathauer, 2019 IL App (4th) 180241, ¶ 40, 146 N.E.3d 175 (citing People v. Allen, 2015 IL 113135, ¶ 25, 32 N.E.3d 615). "Because most postconviction petitions are drafted by pro se defendants, the threshold for a petition to survive the first stage of review is low." (Internal quotation marks omitted.) Id. "If a petition alleges sufficient facts to state the gist of a constitutional claim, first-stage dismissal is inappropriate." Id. This court reviews first-stage dismissals under a de novo standard of review. Allen, 2015 IL 113135, ¶ 19.
¶ 44 C. The Trial Court Did Not Err When It Dismissed Defendant's
Actual Innocence Claim
¶ 45 Defendant argues that the trial court erred when it dismissed defendant's actual innocence claim because the recording rebuts (1) Detective Bierbaum's statement to the court that Patterson left his apartment during the drug transaction with the CS and received drugs from defendant and (2) the State's factual basis which asserted, in part, that during the drug transaction Patterson told the CS that his "guy" was on the way. We disagree.
¶ 46 1. The Law
¶ 47 The Illinois Supreme Court recently described how actual innocence claims are evaluated, as follows:
"To establish a claim of actual innocence, the supporting evidence must be (1) newly discovered, (2) material and not cumulative, and (3) of such conclusive character that it would probably change the result on retrial. [Citations.] Newly discovered evidence is evidence that was discovered after trial and that the petitioner could not have discovered earlier through the exercise of due diligence.
[Citation.] Evidence is material if it is relevant and probative of the petitioner's innocence. [Citation.] Noncumulative evidence adds to the information that the fact finder heard at trial. [Citation.] Lastly, the conclusive character element refers to evidence that, when considered along with the trial evidence, would probably lead to a different result." People v. Robinson, 2020 IL 123849, ¶ 47.
¶ 48 The supreme court described the "conclusive-character" element as follows: "As previously noted, the new evidence supporting an actual innocence claim need not be entirely dispositive to be likely to alter the result on retrial. [Citation.] Rather, the conclusive-character element requires only that the petitioner present evidence that places the trial evidence in a different light and undermines the court's confidence in the judgment of guilt." Id. ¶ 56.
¶ 49 The Illinois Supreme Court further clarified, "a successful actual innocence claim requires a defendant who pleads guilty to provide new, material, noncumulative evidence that clearly and convincingly demonstrates that a trial would probably result in acquittal." Reed, 2020 IL 124940, ¶ 49.
¶ 50 "[T]he well-pleaded allegations in the petition and supporting documents will be accepted as true unless it is affirmatively demonstrated by the record that a trier of fact could never accept their veracity." Robinson, 2020 IL 123849, ¶ 60.
¶ 51 2. This Case
¶ 52 We conclude that the trial court did not err when it dismissed defendant's actual innocence claim because, even if accepted as true, the recording does not "clearly and convincingly demonstrate[ ] that a trial would probably result in acquittal." Reed, 2020 IL 124940, ¶ 49.
¶ 53 Defendant contends that the recording rebuts (1) Bierbaum's statement to the trial
court that Patterson left his apartment during the drug transaction with the CS and received drugs from defendant and (2) the State's factual basis which asserted, in part, that during the drug transaction Patterson told the CS that his "guy" was on the way.
¶ 54 We note that Bierbaum's statement was taken from the complaint for a search warrant in which the State sought to search the cell phones of Patterson and defendant. In that document, Bierbaum said that the CS set up a controlled buy with Patterson and was directed to a particular residence. The complaint states the following:
"Upon arrival, CS 1138 was told by defendant JAMES PATTERSON that 'his guy' was on his way over with the crack cocaine that had been ordered. A short time later a car arrived and at that time defendant JAMES PATTERSON went to the car that had arrived. Defendant JAMES PATTERSON exited the car a short time later and the controlled buy transaction then occurred with CS 1138 after the purported crack cocaine had been obtained from 'his guy' in the car that had just arrived."
¶ 55 This appears to be a simple misunderstanding. Bierbaum's statement is not about what happened on the video or during the drug transaction between Patterson and the CS. Instead, it is about what happened just before the transaction. Bierbaum states that before the buy took place, "a text message was sent from Patterson to the [CS] stating, 'Hurry, my guy is here.' " It is not surprising that the recording did not show the text message, because the video camera was never directed at the cell phone screen. Further, Bierbaum never said that Patterson left the apartment during the drug transaction. Instead, Patterson left the apartment to obtain the drugs from the vehicle after the CS arrived with Bierbaum at the address but before the CS actually went inside the building to complete the drug transaction.
¶ 56 This understanding is further supported by the recording itself, which shows
Patterson saying, "He's like, 'I gotta go.' I said, 'Boy you can trust me with it motherfucker.' I said, 'You can just come back and get your money.' He was like, 'Alright?' " Although this statement is somewhat ambiguous, it appears that Patterson was describing his getting the drugs from defendant prior to meeting with the CS. He even says that the person can come back and get their money. Even the CS shares this understanding because she agrees that "he" (defendant) is "just paranoid." Later, Patterson and defendant were stopped by the police, and defendant had some of the buy money on his person, which is a further indication that Patterson was talking about defendant.
¶ 57 This recording is not probative of defendant's innocence. Instead of demonstrating defendant's innocence, this video corroborates the State's case against him by providing video documentation for some of the essential facts.
¶ 58 D. The Trial Court Did Not Err When It Dismissed Defendant's
Brady Violation Claim
¶ 59 Defendant next contends that the trial court erred when it dismissed defendant's Brady violation claim because the State was required to disclose the recording to him and failed to do so. However, to state a Brady claim, a defendant must show that the evidence is material to guilt or punishment. People v. Beaman, 229 Ill. 2d 56, 74, 890 N.E.2d 500, 510 (2008). We conclude that the trial court was correct when it dismissed defendant's Brady violation claim because the recording was neither exculpatory nor impeaching. Beaman, 299 Ill. 2d at 73-74. As we described previously, the recording does not appear to contradict the statements of the State or Bierbaum. Further, the recording corroborates the State's version of events. For those reasons, we conclude that the State did not commit a Brady violation.
¶ 60 III. CONCLUSION
¶ 61 For the reasons stated, we affirm the trial court's judgment.
¶ 62 Affirmed.