Opinion
4-21-0210
05-03-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DUSTIN F. SCHMIDT, Defendant-Appellant.
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 Woodford County No. 11CF104 Honorable Charles M. Feeney III, Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court. Justices DeArmond and Harris concurred in the judgment.
ORDER
CAVANAGH, JUSTICE
¶ 1 Held: The summary dismissal of the postconviction petition is affirmed because it failed to show that the defendant could adduce material evidence that, if believed, would arguably be clear and convincing evidence of his actual innocence.
¶ 2 The defendant, Dustin F. Schmidt, is in the custody of the Illinois Department of Corrections, serving a sentence for criminal sexual assault (720 ILCS 5/12-13(a)(3) (West 2010)). In the circuit court of Woodford County, he filed a pro se petition for postconviction relief. The court summarily dismissed the petition, finding it to be frivolous or patently without merit. See 725 ILCS 5/122-2.1(a)(2) (West 2020). The defendant appeals. In our de novo review, we affirm the judgment because although the pro se petition presented newly discovered evidence, no reasonable argument could be made that the evidence was material and of such a conclusive character that the evidence probably would result in an acquittal if the case went to trial.
¶ 3 I. BACKGROUND
¶ 4 A. The Police Investigation
¶ 5 According to a police report dated September 3, 2019 (which is attached to the postconviction petition), Kyle R. Durst of the Woodford County sheriff's department was dispatched on July 2, 2011, "to a possible sexual abuse that had taken place between" the 16-year-old defendant and his 9-year-old sister, Z.S. (The two had been adopted from separate families.) Upon arrival, Durst spoke with Z.S.'s father, who said that, the night before, when Z.S. was in the hospital receiving treatment for an unrelated injury, she told her mother "that her [b]rother[, ] [the defendant], had humped her."
¶ 6 Durst then interviewed the mother, who, to quote the summary in the police report, informed Durst of the following:
" [The mother] proceeded to inform me that last night while at the hospital [the mother] explained to [Z.S.] that the Doctor was going to be looking at her privates. [The mother] then asked [Z.S.] if anyone had ever[ ] looked at her in the privates, besides mom, dad, or the Doctor. [Z.S.] stated that [the defendant] had humped her. [The mother] asked [Z.S.] if it was with or without their clothes on. [Z.S.] informed her that [the defendant] had his pants unzipped and the slot on the front side of his boxers was open with his genitalia out. [Z.S.] further informed her that her pants and underwear were also down. [The mother] informed me that [Z.S.] told her [that Z.S.] was on her stomach with [the defendant] on her backside at this time. [Z.S.] stated to [the mother] that when [the defendant] was done he left. [The mother] informed me that [Z.S.] had told her this had happened on four separate occasions. The first time in [the mother's] room, the second time was in [Z.S.'s] room, the third time was in the twins [' ] room, and the last time was in the basement."
¶ 7 After Mirandizing the defendant (see Miranda v. Arizona, 384 U.S. 436 (1966)), Durst spoke with him in the presence of his parents. Durst recounted in the police report:
"When I asked [the defendant] if he would speak with me, he said [yes]. Since [he] already knew of the above allegations[, ] I proceeded to ask him what he thought about what his sister was saying. [He] proceeded to tell me he didn't know. I asked [him] if he could think of any reasons why his sister would make up something like this. [He] replied no. [He] was asked if he thought that maybe his sister was jealous towards him about anything. [He] replied no. I proceeded to ask [him] if he was going to talk to me or say anything other than no[, ] and he just looked down. During the time I was speaking with [him, ] he would not make eye contact with me and would only speak very softly."
¶ 8 On July 6, 2011, Z.S. was interviewed in the child advocacy center. Robert J. Gillson of the Woodford County sheriff's department summarized the interview as follows:
" [Z.S.] disclosed that at the beginning of her third grade year in school [, ] that she was in her mom's bedroom, when [the defendant] came [in] and climbed on top of her. She stated that she was asleep at the time and awoke when [the defendant] was 'humping' her. She stated that he was finished and got off of her and went and got a towel. [Z.S.] disclosed that [the defendant] had placed his privates on her butt and 'humped her[.]' [S]he stated that he continued to move up and down until white stuff came out and was on her butt and back. She stated that [the defendant] was 'putting his balls in her butt' and they 'felt smooshy.' She stated that [the defendant] was just wearing a shirt and had no pants or underwear on and that her pants and underwear had been removed.
She stated that this has happened a lot and occurred almost everyday for a while. She also disclosed that [the defendant] pulled her pants and underwear down to her knees and placed his fingers on her private parts and indicated her vaginal area. [Z.S.] was asked if she had told anyone about this[, ] and she stated she told her older brother Todd about what had happened and that he told [the mother] that she needed to keep an eye on [the defendant] and watch him 'like a hawk.' [Z.S.] was asked if anyone else had touched her[, ] and she stated No." ¶ 9 Also on July 6, 2011, Gillson spoke with Todd Humes by phone. (According to the police report, Humes died on March 24, 2017.) Gillson wrote:
"Todd stated that [Z.S.] had disclosed to him about 2 weeks ago that [the defendant] had been sexually abusing her. He stated that [Z.S.] told him that [the defendant] 'put it in her butt'
Todd stated that he talked to [the defendant] and that [the defendant] denied anything had happened[, ] and Todd stated he was concerned but did not want to alarm anyone right away and tried to watch things for himself. Todd stated that he told [the mother] to watch [the defendant] 'like a hawk' because he felt uncomfortable about him being around [Z.S.]
Todd went on to say that on two separate occasions he had caught [the defendant] and [Z.S.] together and that the clothes were partially off and that [the defendant] was 'dry humping' [Z.S.] through her clothes. He stated that he told his [mother] what was going on when they were at the hospital when [Z.S.] got hurt."
¶ 10 The same day he interviewed Humes by telephone, Gillson interviewed the defendant in the sheriff's office after informing him of his Miranda rights. According to Gillson's account, "[The defendant] kept stating that nothing had happened but could not give an explanation as to why [Z.S.] would say these things. Several times during the interview [the defendant] would be asked a question[, ] and he would just sit there and not respond right away until asked another question. [Gillson] asked [the defendant] if [Z.S.] would have a reason to lie[, ] and he stated that she did not and made the statement that he did not do these things to [her, ] that he didn't 'love her like that.' When [Gillson] explained to him that he was going to be arrested and detained, [the defendant] did not show any emotion on being charged."
¶ 11 B. The Negotiated Guilty Plea to Count II
¶ 12 On September 23, 2011, the defendant entered a negotiated guilty plea to count II, a count alleging that "between January 1, 2010[, ] and March 19, 2011," he committed criminal sexual assault (720 ILCS 5/12-13(a)(3) (West 2010)). Specifically, according to count II, the "defendant, the brother of Z.S.[, ] committed an act of sexual penetration with Z.S.[, ] who was under 18 years of age when the act was committed, in that [he] placed his penis on the anus of Z.S." Count II was a lesser charge than count I, which charged the defendant with aggravated criminal sexual assault (id. § 12-14(b) (i)) in that the "defendant, a person who was under 17 years of age, committed an act of sexual penetration with Z.S. ([born on March 19, 2002]), who was under 9 years of age when the act was committed, in that [the] defendant placed his penis in the anus of Z.S." The terms of the plea agreement were that the defendant would plead guilty to count II, he would be sentenced as an adult to four years' imprisonment followed by mandatory supervised release for three years to natural life, and count I would be dismissed. The circuit court approved the plea agreement, accepted the guilty plea to count II, and imposed the agreed-upon sentence.
¶ 13 C. The Petition for Postconviction Relief
¶ 14 On March 19, 2021, the defendant filed a pro se petition for postconviction relief.
In his petition, he claimed that he was actually innocent of the offense to which he had pleaded guilty. For proof of his claimed innocence, he attached to his petition a newspaper article, East Peoria Man Charged in Home Invasion, Journal Star, Nov. 8, 2011. According to the petition, this newspaper article revealed an "ulterior [sic] suspect who was arrested by police." The petition continued, "The evidence of the newspaper arrest report article points to defendant's older brother breaking into the victim's bedroom where he was arrested for the break in. He was caught before he could commit the sex acts against her." The newspaper article reads as follows:
"An East Peoria man was indicted last week for allegedly entering a locked Metamora residence of someone he knew, where he was found inside a 9-year-old girl's bedroom. A Woodford County grand jury charged Todd F. Humes, 46, of 409 Bayview Drive with criminal trespass to residence. If convicted, he faces up to three years in prison and a $25,000 fine.
On Oct. 11, the homeowner awoke to find a flashlight-holding Humes inside the girl's bedroom. Humes previously had been given written notice not to return to the house, authorities said. The residents called police the next day, and Humes was found in a van stopped alongside Lourdes Road.
When the deputy attempted to arrest him, he initially resisted but complied after he was Tased."
¶ 15 In its dismissal order, the circuit court reasoned that, in the first-stage evaluation of a postconviction petition such as this one, which claimed actual innocence after a guilty plea, the reasonable-argument standard in People v. Coleman, 2012 IL App (4th) 110463, ¶ 48 (citing People v. Hodges, 234 Ill.2d 1, 16-17 (2009)), should overlay the elements that People v. Reed, 2020 IL 124940, ¶ 49, identified as making up an actual-innocence claim. The court wrote, "In combining the first stage post-conviction standard of' arguable' with the standard for new evidence with a guilty plea post-conviction assertion of actual innocence, the court decides if the new evidence alleged by the defendant is new, material, noncumulative evidence that arguably can clearly and convincingly demonstrate that a trial would probably result in an acquittal."
¶ 16 The circuit court granted that Humes's commission of criminal trespass to a residence after the defendant's entry of the negotiated guilty plea was "new" evidence in the sense that it was "evidence *** discovered after the court accepted the plea and could not have been discovered earlier through the exercise of due diligence." Id. The court, however, saw no arguable materiality in the new evidence. Because the newspaper article did "not identify the female," it was "impossible to see the connection to the victim in this case." Nor, in the court's view, did the article arguably "place the underlying proceedings in a different light and undercut the court's confidence in the factual correctness of the conviction." The court summed up:
"There is nothing to show that the two victims are the same, that the victim in this case has recanted her statements upon which the defendant's conviction was premised, that there is anything about the brother's conduct that even had anythingto do with a sexual offense and how a crime committed after the defendant pleaded guilty shows anything pertaining to this case." Therefore, on March 23, 2021, the court summarily dismissed the pro se petition for postconviction relief, finding the petition to be "frivolous" and "patently without merit." 725 ILCS 5/122-2.1(a) (2) (West 2020).
¶ 17 On April 14, 2021, the defendant filed his notice of appeal.
¶ 18 II. ANALYSIS
¶ 19 On appeal, the defendant appears to agree with the circuit court's combination of the Hodges standard and the Reed standard. The defendant writes, "At the first stage [of a postconviction proceeding], all that is required is that the evidence is arguably new, material, and noncumulative evidence that, if believed, could arguably be clear and convincing evidence of actual innocence." He claims that, arguably, the newspaper article is material because "it creates an alternate suspect for the crime." He reasons as follows:
"Taking the allegations in the petition as true, the article indicated that the 9-year-old in question was Z.S. [Citation.] Thus, this evidence demonstrated that Humes had a proclivity for visiting Z.S.'s bedroom. Additionally, it demonstrated that Humes had an inappropriate relationship with Z.S. based on the need for a prior written warning by the homeowners to stay away and his decision to disregard those wishes. Humes was also 46, which is significantly older than both Z.S. and [the defendant]. Therefore, he could have used his age and status as an adult to improperly influence Z.S. into accusing [the defendant]. Humes'[s] relationship with Z.S. is therefore relevant and probative of [the defendant's] innocence. It is at
least arguable that the evidence of the newspaper clipping was material to the actual innocence claim."
¶ 20 The defendant is correct that, in the first stage of a postconviction proceeding, the factual allegations in the petition are to be taken as true unless the record positively rebuts them. See People v. Thomas, 2014 IL App (2d) 121001, ¶ 47. His petition claims that the girl referenced in the newspaper article is Z.S. The record does not positively contradict that claim. Therefore, we assume that the girl in the article is Z.S. See id.
¶ 21 In our de novo review, however (see id. ¶ 48), we disagree that the materiality of the newspaper article is arguable. Also, we disagree that the newspaper article arguably is clear and convincing evidence of the defendant's innocence. Humes's conduct of illegally entering Z.S.'s bedroom after the defendant pleaded guilty has no logical tendency to make it less probable that the defendant sexually assaulted Z.S., as she claimed he did. Humes's offense of criminal trespass to a residence was at least seven months after the defendant's offense of criminal sexual assault, and the suggestion of a connection between the two offenses is strained. That Humes" could have used his age and status as an adult to improperly influence Z.S. into accusing [the defendant]" is not, under any reasonable view, clear and convincing evidence of the defendant's innocence. (Emphasis added.) Rather, it is speculation.
¶ 22 III. CONCLUSION
¶ 23 For the foregoing reasons, we affirm the circuit court's judgment.
¶ 24 Affirmed.