Opinion
No. 1-11-1555
11-07-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL JOHNSON, 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. 03 CR 26786
Honorable
Charles P. Burns,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Howse and Justice Fitzgerald Smith concurred in the judgment.
ORDER
¶ 1 Held: Second-stage dismissal of defendant's postconviction petition was affirmed where he failed to make a substantial showing that he was prejudiced by his counsel's failure to file a motion to withdraw his guilty plea. Defendant was precluded on appeal from advancing an issue not raised in his postconviction petition. Postconviction counsel did not fail to provide a reasonable degree of assistance by not amending the petition. ¶ 2 Defendant Michael Johnson appeals from the second-stage dismissal of his pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)). He contends the circuit court erred in dismissing his petition without an evidentiary hearing when he made a substantial showing that his counsel was ineffective for (1) failing to file a motion to withdraw defendant's guilty plea to first degree murder after defendant directed him to do so, and (2) inducing defendant to plead guilty by erroneously advising him that a motion to suppress statements could be litigated in a later appeal. We affirm the dismissal. ¶ 3 Defendant was charged by indictment with first degree murder, multiple counts of attempted first degree murder, aggravated discharge of a firearm, home invasion, and residential burglary. The State gave notice of intent to seek the death penalty. Defendant's counsel filed and litigated numerous pretrial motions, including a motion to quash arrest and suppress evidence which was denied after a hearing. Counsel also filed a motion to suppress statements, which was scheduled to be heard on May 17, 2006. On that date, however, defendant requested, and the circuit court participated in, a conference pursuant to Supreme Court Rule 402 (eff. July 1, 1997), resulting in defendant entering into a fully negotiated plea of guilty. Pursuant to the plea agreement, defendant pled guilty to one count of first degree murder during which he personally discharged a firearm that proximately caused the death of three-year-old Angel Thomas; the court imposed the agreed-upon sentence of 60 years in prison; and the State dismissed the remaining indictment counts. In response to questioning by the court during the change-of-plea proceeding, defendant stated he was pleading guilty freely and voluntarily and that no one forced or threatened him to get him to plead guilty. The factual basis for the plea provided that defendant went with two codefendants to a house being used by Christy Ball about 2 a.m. on November 12, 2003. Defendant intended to shoot Ball but shot into a bedroom killing Ball's three-year-old daughter Angel Thomas. The police arrested defendant the next day. Two bullets recovered from the bedroom matched the .38 revolver which defendant had. Defendant tested positive in a gunshot residue test and gave a videotaped confession. After defendant stipulated to the factual basis for his guilty plea, the plea was accepted. Pursuant to Supreme Court Rule 605(c) (eff. Oct. 1, 2001), the court advised defendant, inter alia, that he had a right to appeal and that the filing within 30 days of a written motion to withdraw his guilty plea was a prerequisite to taking an appeal. The court granted a one-week stay of mittimus. Neither a motion to withdraw the guilty plea pursuant to Supreme Court Rule 604(d) (eff. July 1, 2006) nor a notice of appeal was filed. ¶ 4 On February 24, 2009, defendant filed a pro se postconviction petition, supported by his own affidavit and by the transcript of his guilty plea and other pages from the trial record. The petition alleged that after defendant pled guilty, he asked his counsel to file a motion to withdraw the plea on the basis of ineffective representation by counsel; that his counsel agreed to come to the jail to discuss the matter; that defendant was shipped to the penitentiary the following day despite a stay of mittimus; and that he learned only more than 30 days later that his counsel had failed to file a motion to withdraw the guilty plea as defendant had specifically requested. The petition also alleged counsel was ineffective prior to the guilty plea when counsel: (1) failed to conduct a careful investigation and interview possible witnesses, consult with defendant, and formulate and execute an adequate theory of defense; (2) failed to communicate with defendant adequately regarding possible defenses, evidence or witnesses; (3) failed to supply defendant with information regarding the evidence the State intended to use; (4) failed to call any witnesses in support of defendant's motion to quash arrest, as a result of which the motion was denied; (5) pressured defendant into falsely admitting guilt to "something he didn't do" by advising him his case could not be won and manipulating him into believing he would die by lethal injection if he did not take the prosecutor's offer of 60 years; (6) assured defendant before the guilty plea that "any problems could be resolved later on appeal" before different prosecutors and judge; and (7) failed to argue the motion to suppress defendant's statements. ¶ 5 The circuit court docketed defendant's petition for further consideration and appointed counsel to represent him. In the second stage of postconviction proceedings, defendant's appointed postconviction counsel interviewed him, interviewed his trial counsel, examined the trial file and transcript of the guilty plea, again interviewed defendant, and filed a certificate pursuant to Supreme Court Rule 651(c) (eff. Dec. 1, 1984). No amendment was made to the pro se petition. The State filed a motion to dismiss the petition which the circuit court granted after concluding defendant had failed to make a substantial showing that his constitutional rights were violated. The court ruled specifically that defendant "failed to provide a legal basis for his request to withdraw his guilty plea" and did not show that the failure to file a motion to withdraw plea prejudiced him. The court also ruled that: counsel's alleged failure to investigate and evaluate the case and consult with defendant was conclusory and belied by the record; the alleged failure to investigate and interview possible witnesses in support of the motion to quash arrest was unsupported by affidavits of possible witnesses; a motion to suppress confession was filed, litigated and denied ; and counsel was not incompetent for informing defendant of the weakness of his case and advising him to plead guilty. Neither the parties nor the court specifically addressed defendant's assertion that his counsel told him "any problems could be resolved later on appeal." ¶ 6 On appeal from the dismissal of his pro se postconviction petition, defendant contends that the petition sufficiently established his trial counsel was ineffective for failing to fulfill defendant's specific request to file a motion to withdraw his guilty plea, thus denying defendant his right to appeal, and that prejudice must be presumed from counsel's omission. ¶ 7 The Act provides a remedy for defendants who have suffered a substantial violation of their constitutional rights at trial. In a non-capital case, a postconviction proceeding contains three stages. People v. Edwards, 197 Ill. 2d 239, 243-44 (2001). If the petition is not summarily dismissed and survives the first stage of the postconviction process, the circuit court is required to docket the pleading (725 ILCS 5/122-2.1 (b) (West 2008)) and appoint counsel if necessary (725 ILCS 5/122-4 (West 2008)). At the second stage, appointed counsel may seek leave to file amendments to the petition. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). The State has 30 days in which to either answer the petition or move to dismiss. 725 ILCS 5/122-5 (West 2008). A defendant is not entitled to an evidentiary hearing as a matter of right. People v. Gacho, 2012 IL App (1st) 091675, ¶ 16. Throughout the second stage of a postconviction proceeding, the defendant bears the burden of making a substantial showing of a constitutional violation. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). To accomplish this, the defendant must support the allegations in his petition by accompanying affidavits or by the record in the case. People v. Coleman, 183 Ill. 2d 366, 381 (1998). Nonspecific and nonfactual assertions which merely amount to conclusions are not sufficient to require a hearing under the Act. Id. At the second stage, all well-pled facts in the petition and accompanying affidavits that are not positively rebutted by the record are to be taken as true. Pendleton, 223 Ill. 2d at 473. A petition will be dismissed at the second stage where "the allegations in the petition, liberally construed in light of the trial record, fail to make a substantial showing of a constitutional violation." Id. The dismissal of a postconviction petition at the second stage, without an evidentiary hearing, is reviewed de novo. Coleman, 183 Ill. 2d at 388-89; Pendleton, 223 Ill. 2d at 473. ¶ 8 In determining whether defendant has made a substantial showing that he was denied the effective assistance of counsel when his counsel failed to file a motion to withdraw his guilty plea, we are guided by Strickland v. Washington, 466 U.S. 668 (1984). People v. Gomez, 409 Ill. App. 3d 335, 339 (2011). Under the Strickland test, a defendant must show that (1) counsel's representation "fell below an objective standard of reasonableness," and (2) counsel's deficient performance prejudiced the defendant. People v. Hodges, 234 Ill. 2d 1, 17 (2009). In evaluating sufficient prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. ¶ 9 Although Strickland requires a defendant to establish prejudice, defendant relies on Roe v. Flores-Ortega, 528 U.S. 470 (2000), in support of his contention that prejudice must be presumed. In Flores-Ortega, where the defendant had pled guilty to second degree murder, the Supreme Court held that the Strickland test applies to claims that counsel was constitutionally ineffective for failing to file a notice of appeal. Id. at 477. The Flores-Ortega court repeated its long-standing ruling "that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Id. Thus, counsel's deficient performance in failing to file a notice of appeal fulfilled the first prong of the Strickland test. The Supreme Court also held that to fulfill the requirement of the prejudice prong of Strickland, a defendant need demonstrate only that, but for counsel's deficient conduct, he would have appealed. Id. at 486. The Court explained that prejudice is presumed because of the unreasonable burden that a pro se defendant faces without the assistance of counsel, as "it is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit before any advocate has ever reviewed the record in his case in search of potentially meritorious grounds for appeal." (Emphasis in original.) Id. ¶ 10 The concern expressed in Flores-Ortega for the pro se defendant unrepresented by counsel subsequently prompted our own supreme court to hold that, at the first stage of postconviction proceedings, prejudice is presumed where a pro se defendant acting without counsel would otherwise shoulder an unreasonable burden to provide grounds for withdrawing his guilty plea and his appeal. Edwards, 197 Ill. 2d at 253, 254, 257. The court concluded that because it is contrary to the holding in Flores-Ortega "to require defendant, who is proceeding pro se, to provide grounds for withdrawing his guilty plea and his appeal, we hold that the circuit court erred in dismissing defendant's petition at the first stage of the post-conviction proceedings." However, the court noted that at the second stage of proceedings, a defendant must explain the basis on which he could have moved to withdraw his guilty plea.
"Our holding is limited to the specific issue before us, i.e., whether the circuit court erred in dismissing defendant's petition at the first stage of the post-conviction proceedings. We do not hold that defendant is entitled to an evidentiary hearing. To merit an evidentiary hearing on his claim that he told his trial counsel to file a motion to withdraw his guilty plea and that counsel was constitutionally ineffective for failing to do so, defendant will have to make a substantial showing to that effect. [Citation.] Such a showing will necessarily entail some explanation of the grounds that could have been presented in the motion to withdraw the plea. Since defendant will be at the second stage of the post-conviction proceedings and will be represented by an attorney, rather than proceeding pro se, this will not present an unreasonable burden." Edwards, 197 Ill. 2d at 257.¶ 11 Defendant asserts that the above paragraph is merely dictum and was not essential to the holding in Edwards. Defendant concludes that with the above paragraph severed from Edwards as dictum, People v. Cole, 287 Ill. App. 3d 147 (1997), which preceded both Flores-Ortega and Edwards, accurately states the law. In Cole, defendant pled guilty to first degree murder and subsequently filed a postconviction petition alleging, inter alia, denial of effective assistance of counsel on the basis he had asked defense counsel to withdraw the guilty plea but counsel failed to do so. The circuit court granted the State's motion to dismiss the petition as being patently without merit. On appeal, this court held that the circuit court erred in dismissing the petition, finding that both prongs of Strickland had been satisfied where defendant alleged he communicated to counsel his desire to appeal and prejudice was presumed where counsel failed to perfect the appeal. Id. at 149-50. ¶ 12 We reject defendant's argument that Cole still stands as good law. Our supreme court's holding in Edwards--that prejudice is presumed only at the first stage of postconviction proceedings--abrogated the earlier appellate court decision in Cole and defeats defendant's claim in the instant appeal. The above-cited paragraph from Edwards was not dictum, but was integral to the court's conclusion that its holding, that prejudice may be presumed from counsel's failure to file a requested motion to withdraw guilty plea, was limited to the first stage of postconviction proceedings. Our courts have long held that petitions advancing to the second stage, as in the instant case, must make a "substantial showing" of a constitutional violation by accompanying affidavits or by the record in the case. Coleman, 183 Ill. 2d at 381. Subsequent supreme court decisions have cited Edwards as authority for the second-stage "substantial showing" requirement. See People v. Domagala, 2013 IL 113688, ¶ 33; People v. Tate, 2012 IL 112214, ¶ 10. This court has consistently followed Edwards in requiring a second-stage substantial showing of the grounds for a motion to withdraw a guilty plea or to reconsider sentence. In Gomez, 409 Ill. App. 3d at 340, this court held: "Because defendant's petition survived summary dismissal, he had to establish at stage two, pursuant to Edwards, on what justifiable basis he could have moved to withdraw his guilty plea and that there was a reasonable probability that the motion would have been granted allowing defendant to withdraw his plea of guilty." See also People v. Jennings, 345 Ill. App. 3d 265, 273 (2003); People v. Hughes, 329 Ill. App. 3d 322, 325-26 (2002). ¶ 13 Unlike the petitioner in Edwards, defendant in the case at bar advanced to the second stage of postconviction proceedings and was appointed counsel. Defendant's reply brief notes that his petition did enumerate allegations of ineffective trial counsel that could have been presented in a motion to withdraw his guilty plea. However, on appeal defendant does not argue how those allegations have merit so as to establish a reasonable probability that a motion to withdraw his plea would have been granted. ¶ 14 Defendant also relies on People v. Ross, 229 Ill. 2d 255 (2008), which held that where a defendant is denied a direct appeal by defense counsel's failure to file a notice of appeal, prejudice may be presumed. Ross is inapposite. There, defendant was convicted of armed robbery following a bench trial in which evidence indicated the weapon used was a pellet gun. There was no direct appeal. Petitioner subsequently filed a pro se postconviction petition, alleging his counsel was ineffective for failing to file a timely notice of appeal. After the circuit court appointed counsel for the defendant and the State filed a motion to dismiss, the court concluded that defense counsel was ineffective for failing to file a notice of appeal. The court decided that the only appropriate remedy was to order the filing of a late notice of appeal nunc pro tunc. On appeal by the State, this court held that the order granting leave to file a late notice of appeal was a proper remedy, reached the merits of the appeal, concluded the State had not proven beyond a reasonable doubt that the pellet gun was a dangerous weapon, and reversed and remanded the armed robbery conviction. People v. Ross, No. 1-05-2806 (2006) (unpublished order under Supreme Court Rule 23). After allowing the State's petition for leave to appeal, our supreme court cited Flores-Ortega in holding that "prejudice may be presumed when defense counsel's ineffectiveness rendered appellate proceedings nonexistent, essentially denying the defendant's right to appeal." Ross, 229 Ill. 2d at 262. Significantly, the supreme court determined that the defendant was entitled to a direct appeal considered by three appellate court judges, not its functional equivalent of a postconviction petition considered by a single trial court judge. Id. at 269. In affirming the judgment of the appellate court, the supreme court concluded that "[a] postconviction petition is no substitute for a direct appeal." Id. As Ross held that the Act affords no effective remedy for a defendant whose counsel failed to file a post-trial notice of direct appeal, Ross is inapplicable to our inquiry of a defendant's burden under the Act to establish a substantial violation of his constitutional rights. In contrast to Ross, the Act is an appropriate remedy when the defendant's counsel has failed to file a 604(d) motion to withdraw guilty plea. In re William M., 206 Ill. 2d 595, 599-600 (2003), citing People v. Wilk, 124 Ill. 2d 93, 107 (1988). The second stage of proceedings under the Act affords no presumption of prejudice but requires a substantial showing as enunciated in Edwards. ¶ 15 Defendant's reply brief offers the argument that his postconviction counsel failed to provide a reasonable level of assistance because "the petition could have benefitted from a more extensive discussion of prejudice." The second-stage appointment of counsel under the Act is a statutory right, not a constitutional right. People v. Turner, 187 Ill. 2d 406, 411 (1998). The duties imposed on postconviction counsel by Rule 651(c) include the duty to make any amendments to the pro se petition necessary to adequately present its claims. People v. Perkins, 229 Ill. 2d 34, 42 (2007). Defendant has failed to establish in what way counsel could have augmented the petition to fully present his claim so as to warrant a third-stage evidentiary hearing. ¶ 16 We conclude defendant has not established that he was denied the effective assistance of counsel by his trial counsel's failure to file a motion to withdraw his guilty plea when, at the second stage of postconviction proceedings, he failed to present the required substantial showing of grounds that could have been presented in such a motion. ¶ 17 Defendant's second issue on appeal is that his guilty plea was not knowingly entered because it was induced in part by his trial counsel's "incorrect assurances" that, even if he pled guilty, he could litigate his motion to suppress his statements in a later appeal. This claim was not articulated in defendant's pro se petition, nor was it addressed by the parties or considered or ruled upon by the circuit court. Claims not raised in a defendant's postconviction petition may not be raised for the first time on appeal from the circuit court's dismissal of that petition. 725 ILCS 5/122-3 (West 2008); People v. Cole, 2012 IL App (1st) 102499, ¶ 13, citing People v. Jones, 213 Ill. 2d 498, 504 (2004). ¶ 18 Defendant's pro se petition alleged that his plea counsel was ineffective, inter alia, for failing to argue a previously filed written motion to suppress defendant's statements. The petition also alleged that defendant's counsel had assured him erroneously before the guilty plea that "any problems could be resolved later on appeal" before a different judge and different prosecutors. Defendant's appellate counsel now combines the two allegations to argue a completely new argument, that defendant was induced to plead guilty by his counsel's promise that "he could resolve any problems later on appeal, such as litigating his motion to suppress." Counsel argues that, where defendant "made it clear in his petition that he wanted counsel to litigate the motion to suppress, there is a reasonable probability that [defendant] would not have pled guilty knowing that it would eliminate an opportunity to challenge his statements later." However, the pro se petition contains no such allegation. Implicit claims of ineffective assistance of counsel do not fall within the "liberal construction" mandate for review of pro se postconviction petitions. Cole, 2012 IL App (1st) 102499 at ¶ 14. Appellate counsel's conclusory "reasonable probability" assertion does not rise to a claim actually advanced by defendant in his pro se petition. ¶ 19 Defendant does not attempt to demonstrate what "problems" existed with the motion to suppress statements that trial counsel promised him could be resolved in a later appeal. The only "problem," that no hearing was held or argument advanced on its behalf, was one of defendant's own making. A hearing on the motion was scheduled for May 17, 2006, but on that date defendant waived the hearing when he requested a 402 conference and changed his plea. Defendant concedes in his initial brief: "The motion was not litigated because [defendant] reluctantly decided to plead guilty, after counsel told him he would be sentenced to death if he went to trial instead." Defendant's decision on that date to change his plea to guilty was his alone to make. People v. Medina, 221 Ill. 2d 394, 404 (2006). Thus, defendant's claim is positively rebutted by the record showing he waived his right to litigate the motion to suppress statements. Dismissal of a postconviction petition is consistently upheld when allegations are contradicted by the record of proceedings in the trial court. Coleman, 183 Ill. 2d at 381-82; People v. Torres, 228 Ill. 2d 382, 394 (2008). ¶ 20 Defendant also argues that his court-appointed postconviction counsel rendered unreasonable assistance by not amending the pro se petition with a more precise statement of the claim he raises on appeal, that he was induced to plead guilty based on his counsel's promise the motion to suppress could be litigated later on appeal. We reject this argument, as counsel was not required to amend a claim defendant never raised in his pro se petition. Counsel is obligated to amend defendant's pro se petition only when necessary to adequately present the claims the defendant has already raised in his petition. People v. Rials, 345 Ill. App. 3d 636, 641 (2003). "While counsel may add new claims, he is not required to amend defendant's pro se postconviction petition to include new issues." Id. See also People v. Davis, 156 Ill. 2d 149, 164 (1993). Defendant's postconviction counsel filed a Rule 651(c) certificate, creating a rebuttable presumption that she provided reasonable assistance to defendant. People v. Profit, 2012 IL App (1st) 101307, ¶ 19. Counsel's certificate stated she had consulted with defendant by letter and by telephone and had examined the transcript containing the guilty plea. Counsel's examination of that transcript of May 17, 2006, would have revealed to her that the hearing on the motion to suppress statements was scheduled to be heard on that date but that defendant waived the hearing by electing to change his plea to guilty. Postconviction counsel is not required to advance nonmeritorious claims. People v. Pendleton, 223 Ill. 2d 458, 472 (2006). Here, postconviction counsel was not required to craft a more precise statement of a claim never asserted in defendant's pro se petition. Defendant has failed to rebut the presumption of postconviction counsel's compliance with Rule 651(c). We conclude that postconviction counsel did not fail to provide a reasonable degree of assistance and that dismissal of defendant's petition was proper. ¶ 21 For the above reasons, the judgment of the circuit court is affirmed. ¶ 22 Affirmed.
Defendant's motion to suppress statements did not go to a hearing; rather, it was defendant's motion to quash arrest and suppress evidence that was litigated and denied.