Opinion
NO. 4-16-0103
03-12-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee v. CAPRECIO PATTERSON, 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 Circuit Court of Livingston County
No. 10CF240
Honorable Mark Fellheimer, Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court.
Justices Knecht and Holder White concurred in the judgment.
ORDER
¶ 1 Held: Pursuant to Anders v. California, 386 U.S. 738 (1967), the appellate court granted counsel's motion to withdraw because no meritorious issues could be raised on appeal.
¶ 2 This case comes to us on the motion of the office of the State Appellate Defender (OSAD) to withdraw as counsel. In October 2015, defendant, Caprecio Patterson, filed a postconviction petition raising five issues. The trial court summarily dismissed the petition, and defendant appealed.
¶ 3 In November 2017, OSAD filed a motion to withdraw. In its brief, OSAD contends that appeal of this case presents no potentially meritorious issues for review. We agree, grant OSAD's motion to withdraw as counsel, and affirm the trial court's judgment.
¶ 4 I. BACKGROUND
¶ 5 A. Procedural History
¶ 6 In April 2011, a jury found defendant guilty of unlawful possession with intent to deliver a controlled substance (less than 15 grams of heroin) (720 ILCS 570/401(c)(1) (West 2010)); unlawful possession of a controlled substance (hydrocodone, alprazolam, and dextropropoxyphene) (720 ILCS 570/402(c) (West 2010)); and unlawful delivery of a controlled substance (less than one gram of heroin) (720 ILCS 570/401(d)(i) (West 2010)). The trial court sentenced defendant to 22 (People v. Patterson, 2015 IL App (4th) 110693-U (Mar. 8, 2013) (unpublished order under Supreme Court Rule 23), ¶ 18. Defendant appealed, and, in March 2013, this court affirmed. Id. ¶ 2.
¶ 7 In March 2013, defendant filed a petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)), arguing that (1) the State knowingly used perjured testimony to obtain his conviction and (2) the trial court erred by denying his motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). The trial court granted the State's motion to dismiss his petition, and this court affirmed. People v. Patterson, 2015 IL App (4th) 130530-U (Feb. 20, 2015) (unpublished order under Supreme Court Rule 23).
¶ 8 B. The Postconviction Petition
¶ 9 In October 2015, defendant filed a postconviction petition in which he asserted the following: (1) trial counsel was ineffective for failing to object to a sleeping juror; (2) trial counsel was ineffective for not seeking a hung jury after the trial court sent the jury a note about soda and cups during deliberations; (3) he was denied due process because the State knowingly used perjured testimony to obtain his conviction; (4) he was denied due process and his fourth amendment rights because the State knowingly made a false statement in the complaint for a search warrant; and (5) appellate counsel was ineffective for not raising these issues on direct
appeal. In January 2016, the trial court summarily dismissed the petition, concluding that it was frivolous or patently without merit.
¶ 10 C. The Current Appeal and OSAD's Motion To Withdraw
¶ 11 In February 2016, defendant filed a notice of appeal. OSAD was appointed to represent defendant on appeal. In November 2017, OSAD filed a motion to withdraw and served a copy on defendant. Defendant has not filed a response.
¶ 12 In its brief, OSAD contends that appeal of this case presents no potentially meritorious issues for review. We agree, grant OSAD's motion to withdraw as counsel, and affirm the trial court's judgment.
¶ 13 II. ANALYSIS
¶ 14 A. The Standard of Review and Applicable Law
¶ 15 The United States Supreme Court has set forth the procedures to be followed for an appellate attorney to withdraw as counsel. Anders v. California, 386 U.S. 738 (1967); People v. Mares, 2018 IL App (2d) 150565, ¶ 6. Counsel's request to withdraw must be accompanied by a brief referring to anything in the record that could support an appeal. People v. Meeks, 2016 IL App (2d) 140509, ¶ 10, 51 N.E.3d 1109. After identifying issues that counsel could conceivably raise, counsel must then explain why these potential arguments are without merit. Id. A copy of this motion must be provided to the client, who will then be given an opportunity to respond to the motion to withdraw. Id. The appellate court will then review the record to determine whether the available arguments are wholly without merit. Id.
¶ 16 B. Forfeiture of Defendant's Arguments
¶ 17 In its motion to withdraw, OSAD argues that all the issues defendant raised in his postconviction petition, other than ineffective assistance of appellate counsel, are forfeited or
subject to res judicata. We agree.
¶ 18 A postconviction proceeding is a collateral attack on a final judgment. People v. English, 2013 IL 112890, ¶ 21, 987 N.E.2d 371. The extent of review is therefore limited to issues that have not been, and could have been, previously adjudicated. Id. ¶ 22. The determinations of the reviewing court on the prior direct appeal are res judicata as to those issues actually decided. Id. Any issues that could have been presented on direct appeal but were not, are forfeited. Id. "[T]he doctrines of res judicata and forfeiture are relaxed where fundamental fairness so requires, where the forfeiture stems from the ineffective assistance of appellate counsel, or where the facts relating to the issue do not appear on the face of the original appellate record." Id.
¶ 19 On direct appeal, defendant failed to raise any of the issues asserted in his petition. His ineffective assistance of trial counsel and due process claims are apparent on the face of the record and could have been raised on direct appeal. Thus, these issues are forfeited.
¶ 20 Because these claims could have been raised on direct appeal, and were subsequently rejected as meritless, they are barred. Moreover, defendant previously raised his due process claims—namely, the use of perjured testimony to obtain a conviction and improper denial of a Franks hearing—in the petition for relief from judgment he filed pursuant to section 2-1401 (735 ILCS 5/2-1401 (West 2012)). See id., ¶ 5. The trial court considered and rejected these claims, and this court affirmed. Id. ¶ 2.
¶ 21 C. Defendant's Ineffective Assistance of Appellate Counsel Claim
¶ 22 In his fifth argument, defendant claims ineffective assistance of appellate counsel for failing to raise the previously mentioned issues on direct appeal. In its motion, OSAD argues none of the issues identified by defendant are meritorious, and, therefore, "there is no viable ar
gument that appellate counsel was ineffective for failing to raise those issues." We agree.
¶ 23 1. The Applicable Law
¶ 24 Appellate counsel renders ineffective assistance by failing to raise an issue on direct appeal if that failure was objectively unreasonable and the decision prejudiced the defendant. People v. Easley, 192 Ill. 2d 307, 328-29, 736 N.E.2d 975, 991 (2000). "Appellate counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence of counsel to refrain from raising issues which, in his or her judgment, are without merit, unless counsel's appraisal of the merits is patently wrong." Id. at 329. "Accordingly, unless the underlying issues are meritorious, defendant has suffered no prejudice from counsel's failure to raise them on appeal." Id.
¶ 25 2. Defendant's Due Process Claims
¶ 26 As discussed above, defendant's due process arguments concerning perjured testimony and the denial of a Franks hearing were previously found to be meritless. Patterson, 2015 IL App (4th) 130530-U. Therefore, appellate counsel was not ineffective for failing to raise these issues on direct appeal.
¶ 27 3. Trial Counsel's Failure To Object to Sleeping Juror
¶ 28 In his petition, defendant claims one of the jurors was asleep throughout the trial and trial counsel was ineffective for failing to object. OSAD contends the record demonstrates the juror was not asleep and the issue is meritless. We agree with OSAD.
¶ 29 A defendant has the right to an impartial and competent jury. Tanner v. United States, 483 U.S. 107, 126 (1987). "[A] juror who is inattentive for a substantial portion of a trial has been found to be unqualified to serve on the jury." People v. Jones, 369 Ill. App. 3d 452, 455, 861 N.E.2d 276, 279 (2006). When faced with a sleeping juror, a trial court has the discre
tion and, in certain cases, may be required to reopen voir dire to investigate. Id. at 455-56 (holding trial court was required to reopen voir dire where it observed juror "half asleep during almost the entire proceeding."). (Emphasis in original.).
¶ 30 During trial, the court noted that one of the jurors had closed her eyes and appeared to be asleep. The trial court questioned the juror on the record, and she explained she had not been sleeping. The court observed the juror during the next portion of the trial and stated on the record that she had been taking notes and did not believe she had been asleep. Defendant does not present any evidence to contradict the statements in the record.
¶ 31 Because the trial court properly reopened voir dire and determined the juror was not sleeping, defendant's claim is meritless. Accordingly, appellate counsel was not ineffective for failing to raise this issue on direct appeal.
¶ 32 4. Trial Counsel's Failure To Seek a Hung Jury
¶ 33 Defendant further asserts that his trial counsel should have sought a hung jury because the jury did not return a guilty verdict until after the trial court sent the jury a note about soda and cups. OSAD argues this claim is meritless. We agree.
¶ 34 "It is improper for a trial court to communicate any message calculated to hasten a verdict." People v. Foster, 394 Ill. App. 3d 163, 166, 915 N.E.2d 448, 451 (2009). "The test is whether, under the circumstances, the language used by the court actually coerced or interfered with the deliberations of jurors to the prejudice of a defendant." Id. at 166-67.
¶ 35 The record shows that during deliberations, the jury requested more coffee. The trial court responded with a note indicating it would also provide soda and cups. Although the note does not appear in the record, neither party disputed the court's representation concerning the note, and defendant does not present any contrary evidence.
¶ 36 Nothing in the record suggests that the trial court's note was coercive or suggested the jury needed to reach a verdict, much less a particular outcome. We therefore conclude that it was not ineffective assistance for appellate counsel to refrain from raising this issue on direct appeal.
¶ 37 III. CONCLUSION
¶ 38 For the reasons stated, we agree with OSAD that no meritorious issue can be raised on appeal. We therefore grant OSAD's motion to withdraw as counsel and affirm the trial court's judgment. Anders, 386 U.S. at 744. In closing, we thank OSAD's counsel for her detailed and well-reasoned brief.
¶ 39 Affirmed.