Opinion
NO. 4-12-1042
01-13-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. ROBERT H. TIMM, Petitioner-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. 09CF4
Honorable
Jennifer H. Bauknecht,
Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court.
Presiding Justice Appleton and Justice Turner concurred in the judgment.
ORDER
¶ 1 Held: We grant counsel's motion to withdraw under Pennsylvania v. Finley, 481 U.S. 551 (1987), as the issues raised in defendant's postconviction petition are barred by res judicata. ¶ 2 This appeal comes to us on the motion of the office of the State Appellate Defender (OSAD) to withdraw as counsel on appeal because any request for review would be without merit. We agree. The issues raised in defendant's postconviction petition were fully raised on direct appeal and are now barred by res judicata. We grant OSAD leave to withdraw as counsel and affirm the first-stage dismissal of defendant's petition.
¶ 3 I. BACKGROUND
¶ 4 In January 2009, the State charged defendant, Robert H. Timm, by information with two counts of possession of contraband inside a penal institution. 720 ILCS 5/31A-1.1(b) (West 2008). Count I alleged defendant knowingly and without authority possessed a sharpened metal rod, a tool to defeat security mechanisms under the definition of contraband. See 720 ILCS 5/31A-1.1(c)(2)(ix) (West 2008). Count II alleged defendant knowingly and without authority possessed a sharpened metal rod, a weapon under the definition of contraband. See 720 ILCS 5/31A-1.1(c)(2)(v) (West 2008). ¶ 5 During defendant's December 2010 jury trial, two witnesses testified, Sergeant Allen Morrison and Officer Karl Webber. Both witnesses were correctional officers at Pontiac Correctional Center. Morrison testified he observed defendant with a three-inch-long sharpened metal rod contained inside a piece of paper. On the paper, a note indicated defendant planned to use the rod to force the locks on the cell doors. Webber testified defendant admitted to him he had sharpened one end of the rod and planned to use it to escape. Both witnesses were familiar with similar sharpened metal rods, which they referred to as "shanks," and said shanks are typically used as weapons by inmates. Defendant did not testify. The jury found defendant guilty on both counts. ¶ 6 At the February 2010 sentencing hearing, the State informed the trial court defendant was subject to Class X sentencing (between 6 and 30 years) on the Class 1 felony convictions, due to his prior convictions for criminal sexual assault and burglary. See 730 ILCS 5/5-5-3(c)(8) (West 2008). The court went beyond the 12 years recommended by the State, sentencing defendant to 18 years in prison followed by three years of mandatory supervised release to be served concurrently with each other and consecutive to the sentence he was then serving. At the sentencing hearing, the court noted the evidence was "very strong" defendant planned to use the rod to escape and "if he needed to, he would have used this shank to cause serious harm, which is another very strong factor in aggravation." The court found other factors in aggravation, including defendant's criminal history and the need for deterrence. Defendant filed a motion for reconsideration of sentence, which the court denied after a hearing. ¶ 7 On appeal before this court, defendant argued (1) one of his convictions must be vacated, as they both arise out of a single physical act; and (2) the trial court aggravated his sentence based on an unsupported belief he would have caused serious harm. On October 5, 2011, we issued an unpublished order pursuant to Illinois Supreme Court Rule 23(b) (eff. July 1, 2011), vacating defendant's conviction on count II and affirming trial court's judgment as to defendant's sentence on count I. People v. Timm, 2011 IL App (4th) 100255-U, & 26 (unpublished order under Supreme Court Rule 23). On remand, the trial court issued an amended judgment, reflecting one conviction. ¶ 8 Defendant filed a petition for leave to appeal to the Illinois Supreme Court, which that court denied in February 2012. People v. Timm, No. 113298 (Mar. 1, 2012), 963 N.E.2d 250 (denying leave to appeal). Defendant also filed a petition for a writ of certiorari to the United States Supreme Court, which was denied. Timm v. Illinois, No. 11-9683 (June 11, 2012) (denying petition for a writ of certiorari). ¶ 9 In July 2012, defendant filed a pro se petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2012)), alleging his rights under the United States and the Illinois State Constitutions were substantially denied. Specifically, defendant claims he should have been given a new sentencing hearing because the trial court improperly evaluated the potential for serious harm to others as an aggravating factor. In October 2012, the trial court dismissed defendant's petition, determining defendant's claims were frivolous and patently without merit because they were barred by res judicata. This appeal followed, and OSAD now moves for leave to withdraw as counsel.
¶ 10 II. ANALYSIS
¶ 11 OSAD argues it should be allowed to withdraw as counsel pursuant to the Supreme Court's decision in Pennsylvania v. Finley, 481 U.S. 551 (1987), because defendant's claim lacks any arguable merit. The record shows service on defendant. On its own motion, this court granted defendant leave to file additional points and authorities by October 9, 2013. He filed none. After reviewing the record consistent with our responsibilities under Finley, we agree. ¶ 12 For constitutional claims, " 'the Act establishes a three-stage process for adjudicating a postconviction petition.' " People v. Bowens, 2013 IL App (4th) 120860, ¶ 10, ___ N.E.2d___. During the first stage, " ' the trial court, without input from the State, examines the petition only to determine if [it alleges] a constitutional deprivation unrebutted by the record, rendering the petition neither frivolous nor patently without merit.' " (Emphasis in original.) People v. Andrews, 403 Ill. App. 3d 654, 658, 936 N.E.2d 648, 652 (2010) (quoting People v. Phyfiher, 361 Ill. App. 3d 881, 883, 838 N.E.2d 181, 184 (2005)). When the trial court dismisses a postconviction petition at the first stage, as the court did here, this court applies de novo review. Bowens, 2013 IL App (4th) 120860, ¶ 11, ___ N.E.2d ___. ¶ 13 Trial courts may dismiss a postconviction petition as frivolous and patently without merit when the claims raised in the petition are barred by res judicata. People v. Blair, 215 Ill. 2d 427, 442, 831 N.E.2d 604, 614 (2005). "The doctrine of res judicata bars consideration of issues that were previously raised and decided on direct appeal." Id. at 443, 831 N.E.2d. at 615. ¶ 14 Defendant's claims were raised and decided on direct appeal. On direct appeal, defendant argued the trial court incorrectly considered the potential for harm to others as an aggravating factor, citing People v. Dempsey, 242 Ill. App. 3d 568, 610 N.E.2d 208 (1993), and People v. Zapata, 347 Ill. App. 3d 956, 808 N.E.2d 1064 (2004). Timm, 2011 IL App (4th) 100255-U, ¶ 18. We held both Dempsey and Zapata were "clearly distinguishable," explaining in both cases "the reviewing courts focused on the lack of corroborating evidence" for an aggravating factor while in defendant's case "[t]he evidence in the record supported the trial court's finding." Id. ¶ 23. We also concluded "[t]he trial court could reasonably infer the possibility of violence in connection with an attempted escape from a maximum security prison, especially where defendant possessed a dangerous weapon." Id. ¶ 24 (citing United States v. Franklin, 302 F.3d 722, 723-24 (7th Cir. 2002)). ¶ 15 As this court has already fully addressed and decided defendant's claim on direct appeal, it was proper for the trial court to dismiss defendant's petition as frivolous and patently without merit. Blair, 215 Ill. 2d at 442, 831 N.E.2d at 614. Therefore, defendant's claims lack any arguable merit and we grant OSAD leave to withdraw as counsel.
¶ 16 III. CONCLUSION
¶ 17 For the foregoing reasons, we grant OSAD's motion for leave to withdraw as counsel and affirm the trial court's judgment. ¶ 18 Affirmed.