Opinion
NO. 4-19-0615
05-13-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOUGLAS H. SPENSLEY, Defendant-Appellant.
NOTICE
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 Macon County
No. 09CF1623
Honorable Jeffrey S. Geisler, Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court.
Justices Turner and Harris concurred in the judgment.
ORDER
¶ 1 Held: The circuit court erred in summarily dismissing defendant's postconviction petition, at the first stage of such proceeding, as defendant presented the gist of a constitutional claim sufficient to require further proceedings relating to his counsel failing to file a motion to withdraw his guilty plea.
¶ 2 On August 24, 2011, defendant, Douglas H. Spensley, pleaded guilty to predatory criminal sexual assault of a child (720 ILCS 5/12-14.1 (West 2008) (now 720 ILCS 5/11-1.40, as renumbered by P.A. 96-1551, art. 2, § 5 (eff. July 1, 2011)), a Class X felony, pursuant to a negotiated disposition. The circuit court sentenced defendant to 10 years of incarceration, consecutively with a federal sentence of imprisonment. Defendant did not file a posttrial motion or a direct appeal. On July 17, 2019, defendant filed a pro se postconviction petition, which the court summarily dismissed at the first stage as frivolous and without merit. Defendant appeals that dismissal, submitting his postconviction petition stated the gist of various constitutional claims,
including for his counsel's failure to file a motion to withdraw his guilty plea. Defendant contends the court should have conducted further proceedings on his postconviction petition. Because we believe defendant's petition stated the gist of a constitutional claim, the court should not have dismissed it at the first stage. Thus, we reverse and remand for further proceedings.
¶ 3 I. BACKGROUND
¶ 4 In October 2009, defendant asked a family friend if the friend's nine-year-old daughter could come spend the weekend with defendant and his son. The family friend consented, and her daughter went to spend a weekend shortly thereafter at defendant's home with defendant and his son. Over this weekend, defendant presented the nine-year-old with clothes he had purchased for her, which defendant asked her to wear. Defendant photographed the girl in these clothes and placed her on a couch. While the girl was on the couch, defendant removed her clothes and penetrated her with his finger.
¶ 5 The State charged defendant with predatory criminal sexual assault of a child (720 ILCS 5/12-14.1 (West 2008) (now 720 ILCS 5/11-1.40, as renumbered by P.A. 96-1551, art. 2, § 5 (eff. July 1, 2011)) (count I), and two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2008) (now 720 ILCS 5/11-1.60(c)(1)(i), as renumbered by Pub. Act 96-1551, art. 2, § 5 (eff. July 1, 2011)) (counts II and III). On August 24, 2011, defendant pleaded guilty to count I, and the State dismissed counts II and III. The circuit court sentenced defendant to 10 years in prison on count I, predatory criminal sexual assault of a child, a Class X felony, plus 3 years of mandatory supervised release. The court imposed the sentence to run consecutively with a federal sentence, and directed defendant to register as a sexual predator for the remainder of his life. Defendant did not file a motion seeking to withdraw his guilty plea or seeking other relief, and did not take a direct appeal.
¶ 6 On July 17, 2019, defendant filed a pro se postconviction petition which alleged (1) defendant requested his attorney to file a motion to withdraw his guilty plea but his counsel failed to do so after defendant continually asserted his innocence; (2) his attorney failed to file a notice of appeal, if we take the allegations liberally; (3) his attorney "mis-guided" defendant causing him to plead guilty; (4) he was threatened and forced to plead guilty by a federal prosecutor; (5) defendant's attorney provided little to no representation; and (6) the evidence against defendant was coerced, perjured, or manipulated.
¶ 7 On August 21, 2019, the circuit court summarily dismissed defendant's petition in a written order. The court found (1) the petition was "frivolous and without merit"; (2) there was nothing in the record showing defendant "did not knowingly and voluntarily plead guilty"; (3) defendant "failed to make a substantial showing that his constitutional rights" had been violated; (4) defendant did not file a motion seeking to withdraw his plea or file a notice of appeal; and (5) defendant's statements about the federal court proceedings "are mere conclusions without any supporting documentation."
¶ 8 From the order summarily dismissing the postconviction conviction, defendant appealed.
¶ 9 II. ANALYSIS
¶ 10 A. Review of Summary Dismissals and Standard of Review
¶ 11 The circuit court at the first stage of a postconviction proceeding must review the defendant's petition and dismiss the petition if the court determines it is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2018). Because most often the petition is pro se, the burden on the defendant is lower in order to give an indigent defendant a meaningful opportunity to present the claims. People v. Porter, 122 Ill. 2d 64, 73 (1988). A defendant does
not have to cite any authority or construct a legal argument. Id. Construed liberally, the defendant's petition must only state the "gist" of a constitutional claim to avoid dismissal at the first stage. People v. Edwards, 197 Ill. 2d 239, 244 (2001) (quoting People v. Gaultney, 174 Ill. 2d 410, 418 (1996)). This standard presents a "low threshold," requiring only "a limited amount of detail." Gaultney, 147 Ill. 2d at 418. The defendant is not required to flesh the claim out "in its entirety." Edwards, 197 Ill. 2d at 244. Further, forfeiture of a defendant's claims not raised on a direct appeal does not apply if the claims are based on errors outside the record. People v. Blair, 215 Ill. 2d 427, 451 (2005).
¶ 12 We review a summary dismissal of a postconviction proceeding at the first stage de novo. Edwards, 197 Ill. 2d at 247.
¶ 13 B. Defendant Stated a Gist of a Claim as to Filing a Motion to Withdraw His Plea
¶ 14 Defendant alleges on appeal the allegations in his postconviction petition satisfied the first stage pleading requirements in several manners. We are concerned herein with the contention that his counsel failed to file a motion to withdraw his guilty plea. Construed liberally, the petition could also be taken as alleging a failure to file a notice of appeal, given that defendant referenced authorities addressing such failures. However, defendant does not explicitly cite the notice of appeal issue as a constitutional claim in his pro se pleading. Given that a motion to withdraw a guilty plea is a precursor to an appeal, and the claim as to such a motion is sufficient in this case to require reversal, we do not delve into a discussion about the filing of a notice of appeal.
¶ 15 We must take defendant's allegations about instructing his attorney to file a motion to withdraw his guilty plea as true on review of this first-stage dismissal. Id. at 253. Defendant alleged several times in his petition that he told his attorney to file a motion to withdraw his guilty
plea because he was "innocent." There is no such motion in the record. Likewise, the record is devoid of any indication defendant's trial counsel (1) reviewed the plea proceedings for error, or (2) consulted with the defendant prior to deciding not to file a motion to withdraw the plea. Of course, we recognize the latter is often outside of the record, as that is what avoids forfeiture of the claim.
¶ 16 Whether defense counsel's decision not to file a motion to withdraw the guilty plea constitutes ineffective assistance necessitates appointment of an attorney for defendant. Id. at 257. Such counsel would be able to investigate and explore defendant's claim (or claims), consult with defendant, and advise defendant of the ramifications of his claim. Id. Thus, like the Edwards court, we cannot conclude at this stage whether defendant's claim "is so completely lacking in substance that it is frivolous or patently without merit." Id.
¶ 17 To be clear, our holding is limited to whether the circuit court erred by summarily dismissing the postconviction petition at the first stage. We are not ruling defendant is necessarily entitled to an evidentiary hearing. To warrant an evidentiary hearing, defendant must make a "substantial showing" he instructed his attorney to file a motion to withdraw his guilty plea and that the ineffectiveness of counsel rose to a constitutional level. Id. at 257-58. This showing must address in some detail the grounds defendant could have presented in a motion to withdraw his plea. Id. at 258. Thus, we reverse and remand for further proceedings on the postconviction petition.
¶ 18 C. Defendant's Other Postconviction Petition Claims
¶ 19 Because we have found defendant stated the gist of a constitutional claim based on the motion to withdraw plea issue, we do not address defendant's other claims. And since summary
dismissals at the first stage of only some of the claims made in a postconviction petition are not permitted, the entire petition is reinstated. People v. Rivera, 198 Ill. 2d 364, 374 (2001).
¶ 20 III. CONCLUSION
¶ 21 For the foregoing reasons, we reverse the circuit court's judgment summarily dismissing defendant's postconviction petition and remand for further proceedings.
¶ 22 Reversed and remanded.