Opinion
2-20-0132
02-17-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY D. ROBERTSON, Defendant-Appellant.
This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Lake County. No. 03-CF-2226 Honorable James K. Booras, Judge, Presiding.
JUSTICE BIRKETT delivered the judgment of the court. Justices Hutchinson and Brennan concurred in the judgment.
ORDER
BIRKETT, JUSTICE
¶ 1 Held: Defendant did not show cause and prejudice to justify filing a successive postconviction petition claiming that he is entitled to a new sentencing hearing because the trial court considered in aggravation a prior conviction that, following the sentencing, was reversed on appeal. Defendant did not show (1) cause, because he could have included the claim in his pro se initial petition, or (2) prejudice, because the trial court stated that it would have imposed the same sentence regardless of that conviction, based on the other aggravating evidence.
¶ 2 Defendant, Timothy D. Robertson, appeals from the judgment of the circuit court of Lake County denying him leave to file a successive postconviction petition (see 725 ILCS 5/122-1(f) (West 2018)). Because defendant failed to show either cause or prejudice justifying the filing of a successive postconviction petition, we affirm.
¶ 3 I. BACKGROUND
¶ 4 In July 2003, defendant was indicted on three counts of first-degree murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2002)) for the June 2003 fatal beating of Johnny Tate. Following a jury trial, defendant was found guilty of all three counts.
¶ 5 At sentencing, the State submitted as aggravating evidence that, in 2000, defendant pled guilty in Alabama to receiving and concealing a stolen 12-gauge shotgun. He was sentenced to one year of misdemeanor probation, with which he failed to comply. The State also submitted evidence that, while in jail awaiting trial in this case, defendant was in a fight with another inmate and nearly severed the inmate's ear. For that incident, defendant was convicted of aggravated battery (case No. 05-CF-1993). As additional aggravating evidence, a detective testified that, earlier on the day of Tate's murder, defendant had punched and choked defendant's girlfriend.
¶ 6 In imposing sentence, the trial court noted defendant's prior criminal history and found that here his criminal conduct was not the result of circumstances unlikely to recur. The court added that it was obvious from the record that defendant would not hesitate to use violence to resolve his disputes or problems. The court elaborated:
"He is violent. He is a threat to society. He is a threat to other individuals. He is a threat to incarcerated individuals whereupon he had-he punched an inmate in the county jail and almost severed his ear. And the jurors found the defendant guilty of that. Even if the jurors would have not found him guilty of that, the evidence of that is sufficient for this Court to consider it in a sentencing hearing."
The court further commented that it could not find that defendant's character and attitude indicated that he was unlikely to commit another crime, because he already had done so while in jail. The court sentenced defendant to 34 years' imprisonment.
¶ 7 Defendant filed a motion to reconsider his sentence. He contended that it was improper for the trial court to consider the aggravated-battery conviction as an aggravating factor at sentencing. He reasoned that the conviction was already the basis for a mandatory consecutive sentence given that the battery occurred while he was awaiting trial in this case.
¶ 8 The court denied the motion to reconsider, and defendant appealed. This court affirmed. See People v. Robertson, No. 2-06-0619 (2008) (unpublished order under Illinois Supreme Court Rule 23).
¶ 9 On April 28, 2008, this court reversed defendant's aggravated-battery conviction due to trial error. People v. Robertson, No. 2-06-0985 (2008) (unpublished order under Illinois Supreme Court Rule 23). In May 2009, the State nol-prossed the aggravated-battery charge.
¶ 10 On February 13, 2009, defendant filed a pro se postconviction petition (725 ILCS 5/122-1 et seq. (West 2008)), and counsel was appointed. At a hearing, with appointed counsel present, defendant notified the trial court that his aggravated-battery conviction had been overturned and that the State had decided to drop the charge. Defendant then noted that (1) the aggravated-battery conviction had been used against him at sentencing, (2) he wanted to amend his petition to challenge his sentence on that basis, and (3) he did not want to waive that issue. The court told him that he would have to discuss that with his appointed counsel.
¶ 11 Thereafter, postconviction counsel filed an amended postconviction petition and a certificate per Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). The amended petition did not raise any issue regarding the aggravated-battery conviction. The State moved to dismiss, and the trial court granted the motion.
¶ 12 Defendant filed a pro se motion to reconsider. He did not, however, raise any sentencing issue regarding the aggravated-battery conviction. The trial court denied the motion to reconsider.
¶ 13 On appeal from the dismissal of his postconviction petition, defendant did not raise any sentencing issue regarding the aggravated-battery conviction. We affirmed. See People v. Robertson, 2013 IL App (2d) 120250-U.
¶ 14 On August 26, 2019, defendant filed a motion for leave to file a successive postconviction petition. The only claim he raised was that the trial court considered his aggravated-battery conviction at sentencing and that the conviction was subsequently reversed. He alleged that (1) his postconviction trial counsel provided unreasonable assistance in failing to include this sentencing claim in the amended petition and (2) his postconviction appellate counsel was, in turn, unreasonable for failing to assert that postconviction trial counsel was deficient in this respect.
¶ 15 The motion for leave to file was heard by the same trial judge who sentenced defendant in this case. The trial court denied the motion. The court found that, because the State did not dismiss the aggravated-battery charge until after defendant filed his pro se petition, defendant had cause for not raising his sentencing claim in that petition. However, the court found that the omission did not prejudice defendant, because he had prior criminal history besides the aggravated-battery conviction. The court pointed to defendant's possession of the stolen shotgun, his failure to comply with probation, and the detective's testimony that defendant choked and punched his girlfriend. The court determined that this additional aggravating evidence supported the sentence and that, therefore, any error in considering the aggravated-battery conviction was harmless. The court relied on cases in which the reviewing court found that the trial court's reliance on an improper sentencing factor was "insignificant" and thus did not result in a greater sentence. See People v. Beals, 162 Ill.2d 497, 509-10 (1994); People v. Moore, 178 Ill.App.3d 531, 545 (1988). Because defendant did not show prejudice, the court denied him leave to file his petition. Defendant, in turn, filed this timely appeal.
¶ 16 II. ANALYSIS
¶ 17 On appeal, defendant contends that he established both cause and prejudice to support filing a successive postconviction petition claiming that he is entitled to a new sentencing hearing because the trial court relied on his aggravated-battery conviction, which was subsequently reversed. He asserts that he showed cause in that, although he attempted to raise this sentencing claim as soon as he learned that the State had nol-prossed the aggravated-battery charge, both his trial and appellate postconviction counsel failed to raise the claim. As for prejudice, he maintains that the trial court, in imposing sentence, gave significant weight to the aggravated-battery conviction.
¶ 18 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) allows a criminal defendant to assert that, in the proceedings resulting in his conviction or sentence, there was a substantial denial of his federal or state constitutional rights. The Act contemplates the filing of a single petition. People v. Dorsey, 2021 IL 123010, ¶ 32. Therefore, a defendant faces immense procedural-default hurdles when bringing a successive postconviction petition. Dorsey, 2021 IL 123010, ¶ 32. Those hurdles are lowered only in very limited circumstances so as not to impede the finality of criminal litigation. Dorsey, 2021 IL 123010, ¶ 32. To that end, the defendant must obtain leave of court to file a successive petition. 725 ILCS 5/122-1 (f) (West 2018). To do so, he must demonstrate cause for failing to raise the claim in his initial petition and prejudice resulting from that failure. Dorsey, 2021 IL 123010, ¶ 32. Cause is shown by identifying an objective factor that impeded the defendant's ability to raise a specific claim during the initial postconviction proceeding. 725 ILCS 5/122-1(f) (West 2018). Prejudice is shown by demonstrating that the claim not raised during the initial proceeding so infected the trial that the resulting conviction or sentence violated due process. 725 ILCS 5/122-1(f) (West 2018).
¶ 19 Leave of court to file a successive petition should be denied when it is clear from a review of the successive petition and supporting documents that the claims raised fail as a matter of law or are insufficient to justify further proceedings. Dorsey, 2021 IL 123010, ¶ 33. A reviewing court conducts a de novo review of the denial of a motion for leave to file a successive postconviction petition. Dorsey, 2021 IL 123010, ¶ 33. If the court concludes that a defendant cannot show prejudice, it need not address whether cause was shown. People v. Smith, 2014 IL 115946, ¶ 37.
¶ 20 Where a trial court bases its sentence on a prior conviction as an aggravating factor and that conviction is subsequently reversed, the court has infringed the defendant's right to be sentenced based on accurate information about his criminal background. United States v. Tucker, 404 U.S. 443, 447-49 (1972); see also People v. Reynolds, 116 Ill.App.3d 328, 330-31 (1983); People v. Merneigh, 101 Ill.App.3d 536, 537 (1981); People v. Buckley, 44 Ill.App.3d 1038, 1039 (1977). The defendant's entitlement to a new sentencing hearing depends on whether the sentence imposed would have been different if the sentencing court had not considered the prior conviction. Tucker, 404 U.S. at 448. In Tucker, the United States Supreme Court held that the defendant was entitled to resentencing because, "if the trial judge *** had been aware of the constitutional infirmity of two of the previous convictions, the factual circumstances of the [defendant's] background would have appeared in a dramatically different light at the sentencing proceeding." Tucker, 404 U.S. at 448.
¶ 21 Merneigh provides a factual contrast to Tucker. In Merneigh, the trial judge's error in considering at sentencing two prior convictions that were subsequently overturned was brought to the attention of the same trial judge via a postconviction proceeding. Merneigh, 101 Ill.App.3d at 537-38. The trial judge, in ruling on the postconviction claim, stated that he had considered other aggravating evidence in imposing the sentence and that the two subsequently overturned convictions were insignificant to the sentence. Merneigh, 101 Ill.App.3d at 538. Thus, we held in Merneigh that the facts were distinguishable from Tucker. Merneigh, 101 Ill.App.3d at 538-39.
¶ 22 Here, the trial court stated that its consideration of the aggravated-battery conviction was harmless error because there was sufficient additional aggravation to justify the sentence imposed. Because the court stated that its consideration of the aggravated-battery conviction was insignificant in light of the other aggravating evidence, this case, like Merneigh, is distinguishable from Tucker. See Merneigh, 101 Ill.App.3d at 538.
¶ 23 Not only did the trial court expressly state that it gave little weight to the aggravated-battery conviction at sentencing, there is an additional reason supporting the court's finding that there was no prejudice. In discussing at sentencing the jail incident that gave rise to the aggravated-battery conviction, the court noted that the jury had found defendant guilty of that offense. However, the court added that, even if the jury had acquitted defendant, the evidence of that incident was sufficient for the court to consider it at sentencing. That was an accurate statement of the law. See People v. Deleon, 227 Ill.2d 322, 340 (2008) (a sentencing court may consider evidence of crimes of which a defendant has been acquitted); see also People v. Jackson, 149 Ill.2d 540, 550 (1992) (the underlying facts of the previous crime may be considered during sentencing, because the burden of proof is lower than at trial). Irrespective of the conviction itself, the court at sentencing properly considered the facts underlying the conviction.
¶ 24 Even if we were to reverse the denial of defendant's motion for leave to file a successive postconviction petition and allow him to challenge his sentence, the most he would obtain is a new sentencing hearing at which the trial court would not be allowed to consider the aggravated-battery conviction. However, the court has already indicated that the absence of the conviction would not have altered the sentence imposed. Accordingly, defendant has not shown prejudice to justify the filing of a successive postconviction petition.
¶ 25 Nor has defendant shown cause for filing a successive petition. Cause is any objective factor, external to the defense, which impeded the defendant's ability to raise a specific claim in his initial postconviction proceeding. People v. Pitsonbarger, 205 Ill.2d 444, 462 (2002). Thus, when cause is based on a fundamental deficiency in the initial postconviction proceeding, the defendant must show that the deficiency directly affected his ability to raise the specific claim now asserted. Pitsonbarger, 205 Ill.2d at 462.
¶ 26 Defendant contends that he showed cause in that (1) the State did not nol-pros the aggravated-battery charge until May 2009, after he filed his initial petition; and (2) his postconviction trial counsel failed to raise the sentencing claim in the amended petition and his postconviction appellate counsel neglected to allege that failure on appeal. We disagree that defendant has shown cause.
¶ 27 First, although the State did not nol-pros the aggravated-battery charge until after defendant filed his initial petition, it was the reversal of the aggravated-battery conviction in April 2008 that gave rise to his sentencing claim. Defendant did not file his initial petition until February 2009. Thus, he could have raised the claim in that petition.
¶ 28 Second, defendant misconceives the role of postconviction counsel. Counsel is provided in the second stage of a postconviction proceeding to ensure that the defendant's claims are adequately presented. People v. Suarez, 224 Ill.2d 37, 46 (2007). Counsel's duties are to investigate and properly present the defendant's claims. People v. Pendleton, 223 Ill.2d 458, 476 (2006). Although postconviction counsel may raise additional claims if he chooses, there is no obligation to do so. Pendleton, 223 Ill.2d at 476.
¶ 29 By extension, the failure of appointed counsel to amend a defendant's pro se postconviction petition to include a claim that the defendant himself had not raised does not constitute cause for filing a successive petition. People v. Ramey, 393 Ill.App.3d 661, 667 (2009). In Ramey, the court held that appointed counsel's performance does not constitute an objective factor, external to the defense, that impedes the defendant's ability to raise a specific claim. Ramey, 393 Ill.App.3d at 667 (citing Pitsonbarger, 205 Ill.2d at 462). The court based this holding on the well-established principle that the reasonable level of assistance required in a postconviction proceeding is limited to counsel's presentation of the defendant's claims. Ramey, 393 Ill.App.3d at 667-68. Thus, allegations amounting to nothing more than a claim that appointed counsel in the initial postconviction proceeding inadequately amended the defendant's petition do not establish a fundamental deficiency that constitutes cause for filing a successive postconviction petition. Ramey, 393 Ill.App.3d at 669 (citing People v. Szabo, 186 Ill.2d 19, 44 (1998) (Freeman, C.J., specially concurring)).
¶ 30 We recognize that defendant orally notified the trial court that he desired to have his sentencing claim considered as part of the initial postconviction proceedings. However, the court told him that he needed to discuss the matter with appointed counsel. Thereafter, counsel filed a Rule 651(c) certificate, which created a presumption of reasonable assistance, including that counsel had consulted with defendant to ascertain his contentions of any deprivation of his constitutional rights. Rule 651(c) (eff. July 1, 2017); People v. Suarez, 224 Ill.2d 37, 42 (2007); see also People v. Perkins, 229 Ill.2d 34, 44 (2007) (duties under Rule 651(c) ensure that counsel shapes a defendant's claims into proper legal form and presents them to the court). The record does not rebut the presumption that counsel duly consulted with defendant. Thus, defendant has not shown cause sufficient to justify the filing of a successive postconviction petition.
¶ 31
III. CONCLUSION
¶ 32 For the reasons stated, we affirm the judgment of the circuit court of Lake County.
¶ 33 Affirmed.