Opinion
1-22-1219
09-29-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. JIMMY SPENCER Petitioner-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 Cook County, Illinois No. 02 CR 14626 The Honorable Carol L. Howard, Judge Presiding.
JUSTICE C. A. WALKER delivered the judgment of the court. Justices Hyman and Tailor concurred in the judgment.
ORDER
C. A. WALKER JUSTICE
¶ 1 Held: The circuit court erred by denying defendant leave to file his successive postconviction petition because he sufficiently demonstrated both cause and prejudice for purposes of 725 ILCS 5/122-1(f)(2) (2014) based on his claim that trial counsel provided ineffective assistance for not informing him of a plea offer.
¶ 2 Petitioner Jimmy Spencer appeals the circuit court's denial of his motion for leave to file a successive postconviction petition pursuant to the Post-Conviction Hearing Act (Act) (Pub. Act 102-639, § 10 (eff. Aug. 27, 2021 (amending 725 ILCS 5/122-1 et seq.)). Spencer argues the circuit court erred in denying him leave to file the petition because he established cause and prejudice for his claim that trial counsel provided ineffective assistance at plea bargaining. For the following reasons, we find that the court erred because Spencer's petition sufficiently demonstrated both cause and prejudice. We also remand so that the State may file a motion regarding the alleged sentencing discrepancy.
¶ 3 I. BACKGROUND
¶ 4 In May of 2002, Spencer shot and wounded Angelique McKinney, her child Lamont McKinney, and her unborn child. Spencer was arrested and charged with multiple counts of aggravated battery, aggravated battery of a child, attempt first degree murder, attempt intentional homicide of an unborn child, and aggravated discharge of a firearm. On June 29, 2004, a conference pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 2012) was held. At the conclusion of the conference, counsel for Spencer stated that he relayed the results to Spencer. The matter was continued to July 19, 2004, where the following exchange occurred:
"DEFFENSE COUNSEL: Your Honor, we conferenced [petitioner] on the last court date or maybe two days ago. I believe we're up today either for today to plead pursuant to the Court's offer or to set it for, I believe it was going to be a jury trial.
COURT: Want to pass it for a couple of minutes?
DEFFENSE COUNSEL: Would you please.
COURT: Jimmy Spencer.
DEFFENSE COUNSEL: I'll waive his appearance Judge. Leave him there.
COURT: By agreement.
DEFFENSE COUNSEL: 7/23.
COURT: Okay, 7/23 for Defense's plea. Defendant's appearance has been waived."
On July 23, 2004, counsel for Spencer requested a jury trial date, which was set for September 27, 2004.
¶ 5 Following the trial, the jury found Spencer guilty of attempt intentional homicide of an unborn child, aggravated battery with a firearm against both Angelique and Lamont, and aggravated battery of a child, with a finding that Lamont was under the age of 12 at the time of the offenses. The matter moved to sentencing, where, during a hearing, the following exchange occurred in mitigation:
"DEFENSE COUNSEL: The State says there is no background to the Defendant, and I don't see any difference in his situation today standing here after the jury trial than was prior when the Court was willing to give him 30 years. I think that should be more than adequate sentence. He is going to do 85 percent of that time. Thank you.
COURT: Mr. Spencer, is there anything you wish to say before I sentence you?
SPENCER: No, your Honor."
¶ 6 Spencer was sentenced to three consecutive sentences of 30 years' imprisonment, totaling 90 years. He challenged his sentence on direct appeal, but subsequently filed a motion to dismiss that appeal, which was granted. People v. Spencer, No. 1-05-0657 (2006) (dispositional order).
Specifically, the court sentenced Spencer to 30 years' imprisonment on count 3 for aggravated battery of a child against Lamont, to run concurrent with a 30-year sentence for count 26 for aggravated battery with a firearm against Lamont; 30 years' imprisonment on count 5 for attempt intentional homicide of an unborn child, merging with count 22 for aggravated battery with a firearm against Angelique; and 30 years' imprisonment for count 6, also for attempt intentional homicide of an unborn child.
¶ 7 On March 5, 2008, Spencer filed his initial postconviction petition, wherein he alleged that both his trial and appellate counsel were ineffective. Specifically, Spencer alleged that appellate counsel was ineffective for electing to withdraw and failing to file an appellate brief. Spencer alleged that trial counsel was ineffective for failing to: (1) move for dismissal for a discovery violation committed by the State; (2) file a motion to suppress eyewitness identification; (3) conduct any pretrial investigation of the crime scene; (4) interview State witnesses; (5) file a motion to reduce his sentence; (6) inform him that he was facing consecutive sentencing; and (7) preserve the record for his appeal. The State subsequently filed a motion to dismiss. The circuit court summarily dismissed the petition, finding the issues raised by Spencer were frivolous and patently without merit. Spencer appealed, and this court affirmed after permitting postconviction counsel to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). People v. Spencer, No. 1-08-1590 (2009).
¶ 8 On October 14, 2021, Spencer filed a motion for leave to file a successive postconviction petition. Therein, Spencer argued that he received ineffective assistance of trial counsel because counsel did not inform him of an alleged 30-year plea offer made by the State before trial. In support, Spencer attached his own affidavit and an affidavit from his sister, Princella Spencer. Spencer alleged in his affidavit that he did not raise the issue in his previous postconviction petition because Princella only recently informed him of it.
¶ 9 In Princella's affidavit, she alleged that she spoke with Spencer's trial counsel after the sentencing hearing, and counsel told her that he "dropped the ball" because the State made an offer Angelique; and 30 years' imprisonment for count 6, also for attempt intentional homicide of an unborn child. for 30 years in prison in exchange for a guilty plea prior to trial. Princella claimed that when she asked why Spencer did not accept the offer, counsel stated that he never relayed it. Princella further averred that she did not have any contact with her brother over the years because she moved to Iowa after Spencer was sentenced. She stated she did not inform Spencer of the State's offer until September 2021, the first time she had spoken to him in 20 years.
¶ 10 Spencer attached pretrial transcripts from two status hearings to support his claims. The June 29, 2004 transcript reflects a request for a Rule 402 conference, admonishments regarding the Rule 402 conference, and the results of the conference being relayed to Spencer. The July 19, 2004 transcript reflects that the purpose of the June 29, 2004 hearing was to plead according to the court's offer or proceed to a jury trial. There was no indication of a second plea offer.
¶ 11 The circuit court denied Spencer's motion for leave, finding that he failed to satisfy the cause and prejudice test required by section 122-1(f) of the Act. See Pub. Act 102-639, § 10 (eff. Aug. 27, 2021) (amending 725 ILCS 5/122-1). Specifically, the court found that Spencer made "no showing that the absence of the claim now presented so infected the trial that his resulting conviction violated due process." The court further found there was no evidence to suggest that the State made a second plea offer. Spencer now appeals.
¶ 12 II. JURISDICTION
¶ 13 Spencer was sentenced on February 22, 2005. Spencer's motion for leave to file a successive postconviction petition was denied on July 15, 2022, and Spencer filed a timely notice of appeal on August 9, 2022. This court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art VI, § 6), and Illinois Supreme Court Rules 603 and 606, governing appeals from final judgments of conviction in criminal cases. Ill. S.Ct. R. 603 (eff. Feb. 6, 2013); R. 606 (eff. Sept. 18, 2023).
¶ 14 III. ANALYSIS
¶ 15 Spencer appeals the circuit court's denial of his motion for leave to file a successive postconviction petition arguing that he established cause and prejudice for his claim that trial counsel was ineffective for not conveying a plea offer from the State that he would have accepted. The State counters that the circuit court's order should be affirmed because Spencer failed to establish cause and prejudice. We review de novo a court's denial of leave to file a successive postconviction petition. People v. Gillespie, 407 Ill.App.3d 113, 124 (2010).
¶ 16 The Act sets out a three-stage process in which a criminal defendant may assert that his conviction resulted from a substantial denial of his rights under the United States Constitution, the Illinois Constitution, or both. People v. Hodges, 234 Ill.2d 1, 9 (2009). Only one postconviction petition is contemplated under the Act, and any claim not raised in the original or amended petition is waived. People v. Edwards, 2012 IL 111711, ¶ 22. One basis our supreme court has identified to relax the bar against successive postconviction proceedings is where the defendant can establish cause and prejudice for failing to raise the claim earlier. Id. (citing People v. Pitsonbarger, 205 Ill.2d 444, 459 (2002)). To establish cause, the defendant must demonstrate some objective factor external to the defense that impeded his ability to raise the claim in the initial postconviction proceeding. Pitsonbarger, 205 Ill.2d at 460. To establish prejudice, the defendant must show the alleged constitutional error so infected his trial that the result violated due process. Id. at 464. The court should deny leave to file a successive postconviction petition "when it is clear, from a review of the successive petition and the documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a matter of law or where the successive petition with supporting documentation is insufficient to justify further proceedings." People v. Smith, 2014 IL 115946, ¶ 35. For a defendant to obtain leave to file a successive postconviction petition, both prongs of the cause-and-prejudice test must be satisfied. People v. Guerrero, 2012 IL 112020, ¶ 15. In considering cause and prejudice, the court must accept as true all well-pleaded factual allegations not positively rebutted by the record. See People v. Robinson, 2020 IL 123849, ¶ 45.
¶ 17 We first consider whether defendant established cause for not raising his claim earlier. In support of his cause argument, Spencer attached his own affidavit and an affidavit from his sister, Princella. In his affidavit, Spencer alleged that he did not raise the ineffective assistance at plea bargaining issue in his previous postconviction petition because Princella only recently informed him of the 30-year offer. In her affidavit, Princella explained that she did not have any contact with her brother following his sentencing hearing because she moved to Iowa, and had not informed Spencer of the 30-year offer until September 2021, which was the first time she spoke to him in 20 years.
¶ 18 On this record, with hold that defendant sufficiently alleged that an objective external factor prevented him from raising the claim earlier such that his motion for leave established cause. According to the allegations in Spencer's and Princella' affidavits, which we must accept as true at this stage, Spencer had no reason to know of the plea offer at any time prior to a month before he filed the motion for leave. This is because, per the affidavits, the only individuals with knowledge of the offer besides the prosecutor (trial counsel and Princella) did not inform Spencer of it at the time of sentencing, and he only learned of the offer from Princella in September 2021, approximately a month before he moved for leave.
¶ 19 We now turn to prejudice. The Illinois Supreme Court recognizes a sixth amendment right to effective assistance of counsel during plea negotiations. People v. Hale, 2013 IL 113140, ¶ 16. This court analyzes ineffective assistance of counsel claims pursuant to Strickland v. Washington, 466 U.S. 668 (1984). See People v. Evans, 186 Ill.2d 83, 93 (1999). Strickland requires a defendant to satisfy two components to prevail on an ineffective assistance of counsel claim: (1) deficient performance and (2) prejudice. Id. To satisfy the deficiency prong of Strickland, the defendant must demonstrate counsel's performance was so inadequate "that counsel was not functioning as the 'counsel' guaranteed by the sixth amendment." Id. Defendant must also overcome the strong presumption that counsel's action or inaction may have been sound trial strategy. Id. To satisfy the prejudice prong, a defendant must prove a reasonable probability exists that, but for counsel's deficient conduct, the result would have been different. Id.
¶ 20 Regarding the deficient conduct prong, Spencer alleged that his trial counsel never informed him of the 30-year plea offer made by the State, and Princella's affidavit alleged that counsel admitted as much directly to her. Specifically, Princella's affidavit alleged that she spoke with Spencer's trial counsel after the sentencing hearing, and counsel stated he "dropped the ball" because the State made an offer for 30 years in prison in exchange for a guilty plea prior to trial. Trial counsel has an affirmative duty to inform his client of any plea offer made by the State, and the failure to do so may constitute objectively unreasonable behavior. See Hale, 2013 IL 113140, ¶ 16. Accordingly, we hold that Spencer's motion for leave contains sufficient allegations of his counsel's allegedly deficient behavior for purposes of Strickland's first prong.
¶ 21 Regarding the prejudice prong of Strickland in the context of a plea offer, the United States Supreme Court has held a defendant must show a reasonable probability of the following: (1) he or she would have accepted the plea offer but for counsel's deficient advice, (2) the plea would have been entered without the State canceling it, (3) the circuit court would have accepted the plea bargain, and (4) "the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time."Missouri v. Frye, 566 U.S. 134, 147 (2012).
¶ 22 Spencer's petition satisfies the first element because it directly alleges he would have accepted the plea offer, and the record suggests he had a weak trial defense, providing support that he would have accepted outside of his own allegation.
¶ 23 Spencer also included sufficient allegations to make the necessary showing at this stage for the second and third elements. For the second, Princella averred in her affidavit that trial counsel told her he "dropped the ball" by not telling defendant of the 30-year offer before trial. A clear inference from this comment is that the State's offer remained on the table up until trial began, as counsel's comment taking blame for a mistake here would make little sense if he believed the offer would be retracted. Similarly, regarding the third element, counsel's disappointment and annoyance with himself in commenting to Princella that he "dropped the ball" again permits a favorable inference for Spencer-here, that counsel believed the court would accept the plea offer, and thus counsel erred by not relaying it to Spencer. Moreover, there is indication that the court would have accepted the plea from the record, as defense counsel stated as much during the sentencing hearing, and a Rule 402 settlement conference occurred, suggesting the court was open to entering a sentence agreed via plea bargaining.
¶ 24 Finally, regarding the fourth element, the record is clear that Spencer's outcome at trial was much worse than the plea offer would have been, as demonstrated by the large disparity between the State's alleged offer of 30 years and the 90-year total sentence Spencer ultimately received. Thus, Spencer's motion for leave and accompanying affidavits made the necessary showing for prejudice for an ineffective assistance at plea-bargaining claim, meaning (1) Spencer sufficiently demonstrated both prongs of Strickland, and thus (2) the circuit court erred by denying Spencer leave to file successive petition because his motion set forth sufficient allegations to establish both cause and prejudice per the Act.
¶ 25 We note that the State has asked this court to remand the matter to the circuit court for a correction of a clerical error in the mittimus resulting in a sentencing discrepancy between the record and the judgment of the circuit court. We remand to the circuit court to allow the State to file a motion pursuant to Illinois Supreme Court Rule 472(e) (eff. May 17, 2019).
¶ 26 IV. CONCLUSION
¶ 27 Taking Spencer's pleadings as true, we hold that he has made a prima facie showing of cause and prejudice because he could not have learned of his counsel's failure to relay the State's plea offer sooner, his counsel admitted to deficient conduct, and Spencer allegations met the threshold showing for prejudice in the context of ineffective assistance at plea bargaining claims. Accordingly, we reverse the circuit court's judgment, and remand for further postconviction proceedings.
¶ 28 Reversed; cause remanded.