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People v. Hill

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT SECOND DIVISION
May 14, 2013
2013 Ill. App. 111553 (Ill. App. Ct. 2013)

Opinion

No. 1-11-1553

05-14-2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRANDON HILL, 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

Cook County.


No. 07 CR 17130


Honorable

Arthur F. Hill, Jr.,

Judge Presiding.

JUSTICE delivered the judgment of the court.

Justices Quinn and Connors concurred in the judgment.

ORDER

¶ 1 Held: The summary dismissal of defendant's post-conviction petition affirmed where defendant failed to raise an arguable claim of ineffective assistance of trial counsel; trial court's failure to strictly comply with section 5-3-1 of the Unified Code of Corrections (730 ILCS 5/5-3-1 (West 2008)) was voidable error and not subject to collateral attack. ¶ 2 Defendant Brandon Hill appeals from an order of the circuit court of Cook County summarily dismissing his pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et. seq. (West 2008)). He contends that the circuit court has yet to rule on his claim that his counsel was ineffective for failing to advise him of his entitlement to an instruction on a lesser-included offense. Defendant also contends that his sentence must be vacated because the trial court failed to strictly comply with the requirements of section 5-3-1 of the Unified Code of Corrections (Code) (730 ILCS 5/5-3-1 (West 2008)). ¶ 3 The record shows that defendant was charged with attempted first degree murder, aggravated battery with a firearm, aggravated vehicular hijacking, armed robbery and three counts of aggravated battery. These charges stemmed from an incident that occurred on August 12, 2007, at an Auto Zone store near 6901 West North Avenue in Chicago, which resulted in the shooting of Charles Booker. ¶ 4 On May 1, 2009, defendant entered a negotiated plea of guilty to aggravated battery with a firearm, for which he was sentenced to 12 years imprisonment, of which 85% would be served. The factual basis for the plea shows that defendant and co-defendants, Devon Stewart and Sharon Harrison, accosted Booker while he was tending to his vehicle. Stewart pointed a gun at Booker while defendant went through Booker's pockets and removed a wallet and cellular phone. Defendant, Stewart and Harrison then got into Booker's vehicle and began to drive away. Booker ran toward them, and when he was less than 10 feet away from the vehicle, Stewart raised the gun, pointed it at Booker through the back passenger's window, and shot him in the lower right abdomen. Defendant, Stewart and Harrison then drove away. ¶ 5 Although admonished of his appeal rights, defendant did not file a motion to withdraw his guilty plea or otherwise attempt to perfect an appeal from the judgment entered thereon. On February 7, 2011, however, the court received defendant's pro se motion for an order nunc pro tunc requesting that his mittimus be corrected to reflect that he serve only 50% of his imposed sentence, and receive day-for-day credit for good conduct because he was not the one who shot the victim. The record does not reflect whether this motion was ever addressed by the court. ¶ 6 On February 10, 2011, defendant filed the pro se post-conviction petition at bar in which he alleged that he was deprived of his right to effective assistance of counsel because counsel failed to heed his request to file a motion to reconsider his sentence and a notice for leave to appeal. He also alleged that counsel failed to advise him that he was entitled to pursue a reckless conduct defense and to a related lesser-included offense instruction. ¶ 7 In an affidavit filed in support of his petition, defendant averred that defense counsel never advised him "of a reckless conduct defense or that [he] was entitled to a lesser-included offense on reckless conduct instruction." Defendant also averred that had counsel done so, he would have insisted on exercising his right to a jury trial. ¶ 8 After a timely review, the circuit court dismissed defendant's petition as frivolous and patently without merit. In doing so, the court found that counsel's failure to file a motion to reconsider the sentence and a notice for leave to appeal was not unreasonable or that it affected the outcome of the case. Thus, defendant failed to establish either prong of the Strickland test. Defendant now challenges the propriety of that dismissal order and our review is de novo. People v. Hodges, 234 Ill. 2d 1, 9 (2009). ¶ 9 First, defendant contends that his sentence must be vacated and his case remanded for re-sentencing because the trial court sentenced him to a term agreed upon by the parties without a pre-sentence investigation report (PSI), or a specific finding on the record of his criminal history, as required by section 5-3-1 of the Code. 730 ILCS 5/5-3-1 (West 2008). ¶ 10 As the State points out, this claim was not included in defendant's petition. Defendant acknowledges that he is raising this issue for the first time on appeal from the summary dismissal of his post-conviction petition, but argues that he is not barred from relief here because his sentence is void. ¶ 11 The Act provides that "any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived." 725 ILCS 5/122-3 (West 2008). Accordingly, the supreme court has held that any issue to be reviewed must be presented in the petition filed in the circuit court (People v. Jones, 211 Ill. 2d 146, 148-49 (2004)), and that any issue raised for the first time on appeal is waived (People v. Jones, 213 Ill. 2d 498, 505 (2004)). An attack on a void judgment, however, may be made at any time. Jones, 211 Ill. 2d at 146. ¶ 12 Section 5-3-1 of the Code provides, in pertinent part:

"A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court.
However, *** the court need not order a presentence report of investigation where both parties agree to the imposition of a specific sentence, provided there is a finding made for the record as to the defendant's history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment." 730 ILCS 5/5-3-1 (West 2008).
Compliance with this provision has been construed as mandatory. People v. Harris, 105 Ill. 2d 290, 299-300 (1985). ¶ 13 In this case, defendant correctly points out that the court was informed of his prior felony conviction for aggravated battery upon a government employee, but that the sentence imposed on that conviction was not mentioned. According to defendant, this omission renders his sentence void. We disagree. ¶ 14 In People v. Sims, 378 Ill. App. 3d 643, 648, 650 (2007), this court held that the failure to state a defendant's criminal background on the record does not render the sentence void but, rather, merely voidable. Sims involved an appeal from the dismissal of an untimely petition for relief pursuant to section 2-1401, and there, as here, defendant entered a negotiated guilty plea and argued that the trial court's failure to make a specific finding of his criminal history on the record, in violation of section 5-3-1, rendered his sentence void. Sims, 378 Ill. App. 3d at 645-46. In rejecting that argument, this court examined People v. Davis, 156 Ill. 2d 149, 155 (1993), where our supreme court set forth the distinctions between void and voidable orders, and distinguished People v. Walton, 357 Ill. App. 3d 819 (2005), and People v. Evans, 273 Ill. App. 3d 252 (1994), upon which defendant also relies. This court noted that both of those cases involved timely direct appeals and were not in the same procedural posture as this case and neither court addressed the specific question at issue. Sims, 378 Ill. App. 3d at 646-49. People v. Johnson, 97 Ill. App. 3d 976 (1981), which was cited by defendant, was distinguished by this court as it did not involve a negotiated guilty plea. Sims, 378 Ill. App. 3d at 649-50. ¶ 15 Although defendant argues that the reasoning in Sims was "flawed" and that the court "misread" the holdings of the cases relied upon in reaching its conclusions, we decline to deviate from the reasoning set forth therein. Thus, pursuant to the holding in Sims, we find that defendant's sentence was merely voidable due to the trial court's failure to state his criminal background on the record, and, accordingly, that it is not subject to collateral attack. Sims, 378 Ill. App. 3d at 648, see also Beacham v. Walker, 231 Ill. 2d 51, 60 (2008). ¶ 16 Defendant further maintains that the circuit court's order summarily dismissing his post-conviction petition is void. Although he does not contest that the trial court issued its order within the 90-day time-frame mandated by the Act, he maintains that the trial court's failure to specifically mention his allegation relating to the lesser-included offense issue in that order is tantamount to a partial summary dismissal, which is prohibited under People v. Rivera, 198 Ill. 2d 364 (2001). ¶ 17 In People v. Porter, 122 Ill. 2d 64, 82 (1988), the supreme court held that the failure to specify findings of fact and legal conclusions in a written order summarily dismissing a post-conviction petition does not require reversal of that dismissal order. It follows that a court's failure to explicitly address a specific claim does not require reversal. Here, the record reflects that the circuit court specified in its written order that the "issues" raised by defendant are frivolous and patently without merit, and that "the petition" is dismissed. Through this wording, the court did not advance any of defendant's claims to second stage proceedings or appoint counsel to assist defendant. Accordingly, it is clear that the circuit court dismissed defendant's petition in its entirety (see People v. Lee, 344 Ill. App. 3d 851, 854-55 (2003), and did not, as defendant maintains, improperly dismiss certain claims while advancing other claims to the second stage of review. ¶ 18 Additionally, we observe that defendant has concentrated solely on his ineffective assistance claim related to the lesser-included offense issue in this appeal. Accordingly, defendant has abandoned the remaining claims raised in his petition and forfeited them for appeal. Ill S. Ct. R. 341(h)(7); People v. Guest, 166 Ill. 2d 381, 414 (1995). ¶ 19 At the first stage of a post-conviction proceeding, a pro se defendant only needs to present the gist of a meritorious constitutional claim. People v. Edwards, 197 Ill. 2d 239, 244 (2001). If a petition has no arguable basis in law or in fact, it is frivolous and patently without merit, and the trial court must summarily dismiss it. Hodges, 234 Ill. 2d at 11-12, 16. ¶ 20 In his petition, defendant claims that counsel was ineffective for failing to advise him that he was entitled to a reckless conduct defense and a related lesser-included offense instruction. To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was objectively unreasonable and that he was prejudiced as a result thereof. Hodges, 234 Ill. 2d at 17, citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984). However, at the first stage of post-conviction proceedings, a petition alleging ineffective assistance of counsel may not be summarily dismissed if it is arguable that counsel's performance fell below an objective standard of reasonableness, and it is arguable that he was prejudiced thereby. People v. Tate, 2012 IL 112214, ¶ 19, citing Hodges, 234 Ill. 2d at 17. ¶ 21 Here, defendant merely challenges the circuit court's alleged failure to consider his claim of ineffective assistance on this basis, and asserts that the State's attack on the substantive merits is premature because the circuit court has yet to rule on his claim. We have already rejected defendant's argument regarding the circuit court's "partial" dismissal of his petition, and reiterate that we review the judgment, and not the trial court's reasoning, and may affirm the order based on any reason supported by the record. People v. Anderson, 401 Ill. App. 3d 134, 138 (2010). Defendant cannot avoid the requirement that he set forth the gist of a meritorious constitutional claim at the initial stage of proceedings (Hodges, 234 Ill. 2d at 9-10), and, here, we review whether he met his burden of setting forth an arguable claim of ineffective assistance of counsel. ¶ 22 As noted, defendant pled guilty to aggravated battery with a firearm, which occurs where a person knowingly or intentionally commits a battery by discharging a firearm and causing injury to another person. 720 ILCS 5/12-4.1(a)(1) (West 2006). A person acts knowingly when he is consciously aware of the unlawful nature of his conduct or the attendant circumstances (720 ILCS 5/4-5 (West 2006)), and acts intentionally when his conscious objective is to accomplish a result or engage in the proscribed conduct (720 ILCS 5/4-4 (West 2006)). In contrast, a person acts recklessly when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, which disregard constitutes a gross deviations from the standard of care a reasonable person would exercise in such a situation. 720 ILCS 5/4-6 (West 2006). ¶ 23 Where there is even the slightest evidence which, if believed by the jury, would reduce a charged crime to a lesser included offense, an instruction on that lesser included offense should be given. People v. Roberts, 265 Ill. App. 3d 400, 402-03 (1994). In this case, the record reveals no evidence that would have entitled defendant to a reckless conduct instruction. ¶ 24 Because defendant did not physically hold the gun at issue, his guilt as to the charge of aggravated battery with a firearm was based on a theory of accountability, through which he was legally accountable for the conduct of others with whom he shared a common criminal plan or purpose. 720 ILCS 5/5-2(c) (West 2006); People v. Taylor, 164 Ill. 2d 131,140-41 (1995). Accountability requires specific intent (720 ILCS 5/5-2(c) (West 2006)), and, accordingly, a defendant's actions in committing an offense as an accomplice cannot be merely reckless (People v. Baney, 229 Ill. App. 3d 770, 774 (1992)). ¶ 25 The factual basis provided for his plea reflects that defendant was part of a group that shared the common criminal plan of accosting Booker with a gun, stealing personal items and his vehicle from him, and shooting him in the process. Although defendant did not personally hold the gun, he was accountable for the actions of Stewart, who, from a short distance of 10 feet, pointed the gun directly at Booker and shot him in the abdomen. Under such circumstances, Stewart's action in shooting Booker cannot be characterized as reckless. People v. Eason, 326 Ill. App. 3d 197, 210 (2001). ¶ 26 Accordingly, defendant's claim of ineffective assistance of counsel based on counsel's failure to advise him of the reckless conduct defense had no basis in law or in fact (Hodges, 234 Ill. 2d at 16-17), and was, therefore, subject to summary dismissal (Tate, 2012 IL 112214, ¶¶ 19-20). We, therefore, affirm the order of the circuit court of Cook County to that effect. ¶ 27 Affirmed.


Summaries of

People v. Hill

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT SECOND DIVISION
May 14, 2013
2013 Ill. App. 111553 (Ill. App. Ct. 2013)
Case details for

People v. Hill

Case Details

Full title:THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRANDON HILL…

Court:APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT SECOND DIVISION

Date published: May 14, 2013

Citations

2013 Ill. App. 111553 (Ill. App. Ct. 2013)