Opinion
5-19-0400
09-14-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE A. WALKER JR., 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 St. Clair County. No. 78-CF-314 Honorable Julie K. Katz, Judge, presiding.
JUSTICE WELCH delivered the judgment of the court. Justices Barberis and Vaughan concurred in the judgment.
ORDER
WELCH, JUSTICE
¶ 1 Held: The circuit court did not err in denying the defendant's motion for leave to file a successive postconviction petition, and any argument to the contrary would lack merit, and therefore the defendant's appointed appellate counsel is granted leave to withdraw, and the judgment of the circuit court is affirmed.
¶ 2 The defendant, Eugene A. Walker Jr., is serving an aggregate prison sentence of 140 years for murder, attempted murder, and other felonies committed in 1978. He appeals from the circuit court's order denying his motion for leave to file a successive postconviction petition. The defendant's appointed attorney on appeal, the Office of the State Appellate Defender (OSAD), has concluded that this appeal lacks merit, and on that basis it has filed with this court a motion to withdraw as counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), along with a memorandum of law in support thereof. OSAD properly gave notice to the defendant. This court gave the defendant ample opportunity to file a pro se brief, memorandum, or other document explaining why OSAD should not be allowed to withdraw as counsel, or why this appeal has merit. The defendant has not taken advantage of that opportunity. This court has examined OSAD's Finley motion and memorandum of law, as well as the entire record on appeal, and has concluded that this appeal does indeed lack merit. Accordingly, OSAD is granted leave to withdraw as counsel, and the judgment of the circuit court is affirmed.
¶ 3 BACKGROUND
¶ 4 The Charges, the Pleas, the Sentences, and the Direct Appeals
¶ 5 On May 20, 1978, at approximately 3 a.m., the defendant walked into a tavern in Caseyville, Illinois. He displayed a .30 caliber rifle, announced a robbery, and demanded money. A drinking buddy of the defendant, Paul Bainter, waited for him near the tavern, in a car with the engine running. In the dining area of the tavern, the defendant shot customer Elsie Wallace in the neck and abdomen from a distance of about three feet, killing her instantly. The other customers and staff walked to the tavern's small back room, as the defendant had ordered. Minutes later, the defendant, too, walked into the back room. There, he shot James Outland in the face, Terry Wallace, the daughter of Elsie Wallace, in an arm, George Delisle in a leg, and Carol Alier in a breast, all at close range and in rapid succession. Then, the defendant fled from the tavern. Outland, Terry Wallace, Delisle, and Alier survived the shooting, though they all needed to be hospitalized for anywhere from a few days to a few months. Approximately three weeks after the robbery-shooting, the defendant and Bainter were arrested in Texas.
¶ 6 In June 1978, a grand jury returned an indictment charging the defendant and Bainter with eight felony counts, viz.: murder (Ill. Rev. Stat. 1977, ch. 38, ¶ 9-1(a)(1)), armed robbery (id. ¶ 18-2(a)), armed violence (id. ¶ 33A-2), conspiracy to commit armed robbery (id. ¶ 8-2(a)), and four counts of attempted murder (id. ¶ 8-4(a)) in connection with the shootings of Outland, Terry Wallace, Delisle, and Alier. The murder count alleged an "intent to kill" Elsie Wallace. The circuit court appointed counsel to represent the defendant.
¶ 7 In October 1978, the defendant and the State entered into a plea agreement, whereby the State agreed to dismiss the single count of conspiracy to commit armed robbery, and the defendant agreed to plead guilty to all the remaining offenses. The parties agreed that he would be sentenced to imprisonment for 60 years on the murder count, with shorter and concurrent prison sentences for the other counts. The court accepted the defendant's pleas, and sentenced him according to the parties' agreement.
¶ 8 A timely motion to withdraw guilty pleas followed. With the help of another appointed attorney, the defendant claimed that he had been improperly admonished and did not fully understand the consequences of his plea. Following a hearing in December 1978, the court granted the defendant's motion to withdraw guilty pleas.
¶ 9 In February 1979, with still another attorney representing the defendant, the defendant entered nonnegotiated pleas of guilty to all eight counts of the indictment. The circuit court accepted the pleas, and entered judgment thereon. The court proceeded directly to a death-penalty hearing, the defendant having waived his right to a jury. Numerous witnesses testified, including the four attempted-murder victims and the defendant's coindictee, Paul Bainter. (Bainter had pleaded guilty to armed robbery and armed violence in connection with the robbery-shooting, and he had been sentenced to imprisonment for concurrent terms of 10 years. He had agreed to testify in the defendant's case.) At the end of the hearing, the court imposed a sentence of death for the murder of Elsie Wallace. As to the other seven counts, the court sentenced the defendant to imprisonment for varying terms, as follows: for armed robbery, 60 years; for armed violence, 30 years; for conspiracy to commit armed robbery, 3 years; and for each of the four counts of attempted murder, 60 years.
¶ 10 Because of the death sentence, the defendant had an automatic appeal to our supreme court. He was represented by OSAD in that appeal. In May 1981, our supreme court vacated the defendant's sentence of death for the murder count, and also vacated the conviction for conspiracy to commit armed robbery. The court remanded the cause for the imposition of a sentence not greater than 80 years in prison for the murder. In all other respects, the judgment of conviction was affirmed. People v. Walker, 84 Ill.2d 512 (1981).
¶ 11 In June 1981, on remand from our supreme court, the circuit court held a sentencing hearing on the murder count. The court imposed a sentence of 80 years in prison for murder, to be served consecutively to the previously-imposed prison sentences on the other counts (armed robbery, armed violence, and four counts of attempted murder). See Ill. Rev. Stat. 1977, ch. 38, ¶ 1005-8-4 (concurrent and consecutive terms of imprisonment) (now codified, as amended, at 730 ILCS 5/5-8-4 (West 2020)).
¶ 12 The defendant took a direct appeal to this court. OSAD represented him. Before this court, he argued that the 80-year extended-term sentence for murder was improper, under alternative theories; the consecutive sentences were improper, under alternative theories, including prosecutorial vindictiveness; and aspects of the sentencing hearing were improper. This court rejected the defendant's arguments, and affirmed the judgment of the circuit court. People v. Walker, 113 Ill.App.3d 1074 (1983).
¶ 13 The Defendant's First Petition for Postconviction Relief, With Appeals
¶ 14 In September 1986, the defendant filed a pro se petition for postconviction relief. Postconviction counsel was appointed to represent the defendant. In November 1987, the State filed a motion to dismiss the petition, on the grounds that most of its claims were forfeited ("waived") and one was barred by principles of res judicata. Also in November 1987, the defendant filed, through counsel, an amended petition for postconviction relief. In it, the defendant presented nine claims of ineffective assistance of counsel and violations of due process and equal protection. The circuit court, after listening to the arguments of the parties, granted the State's motion and dismissed the defendant's amended postconviction petition. The defendant appealed. OSAD again represented him. This court found that the record did not contain a certificate or other evidence establishing that postconviction counsel had complied with Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984), and for that reason, it reversed the order granting the State's motion to dismiss, and remanded the cause for further proceedings. People v. Walker, 189 Ill.App.3d 1116 (1989) (unpublished order under Supreme Court Rule 23). This appeal was the first of two appeals regarding the defendant's first postconviction petition.
¶ 15 With the cause back in the circuit court, the defendant filed a pro se amended postconviction petition and several pro se "supplements" between April 1989 and August 1990. In October 1991, the State filed a motion to dismiss the defendant's petition for postconviction relief "and all amendments thereto."
¶ 16 In June 1993, the defendant filed, through appointed postconviction counsel, an amended petition for postconviction relief. It presented a long and varied list of postconviction claims, ranging from "line-up procedures held at St. Clair County Jail" to threats allegedly made against the defendant, his wife, and child by the coindictee's brothers, and from the facts surrounding the defendant's second guilty plea (in February 1979) to the 80-year prison sentence imposed for murder (in June 1981), etc.
¶ 17 In December 1993, the State filed an amended motion to dismiss the defendant's amended postconviction petition. Discussing each one of the defendant's proposed postconviction claims, the State argued for dismissal based upon failure to state a claim, forfeiture ("waiver"), or principles of res judicata. The court held a hearing, heard argument, and took the matter under advisement. Postconviction counsel filed a 651(c) certificate.
¶ 18 In January 1994, the circuit court entered an order that "denied" the defendant's amended postconviction petition. The order stated that all of the issues raised by the defendant had either been forfeited ("waived") or were res judicata. The defendant appealed to this court, where OSAD again represented him. This court affirmed the dismissal of the defendant's postconviction petition. People v. Walker, No. 5-94-0029 (Feb. 7, 1996) (unpublished order under Supreme Court Rule 23). This was the defendant's second appeal regarding his first postconviction petition.
¶ 19 The Defendant's Second Postconviction Petition
¶ 20 In August 2000, the defendant filed a pro se postconviction petition. It was his second postconviction petition. The defendant claimed that his extended-term sentences and his consecutive sentences were impermissible under the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). The circuit court docketed the petition for further consideration, and appointed postconviction counsel for the defendant. In November 2000, the State filed a motion to dismiss the petition. In June 2001, the circuit court held a hearing on the State's motion to dismiss. After hearing the arguments of counsel, the court granted the State's motion and dismissed the petition. Postconviction counsel filed a certificate of compliance with Rule 651(c). The defendant appealed. OSAD was appointed to represent the defendant, but this time OSAD (and a contract attorney) filed a motion to withdraw as counsel pursuant to Pennsylvania v. Finley. The defendant filed an objection. This court granted the Finley motion, and affirmed the judgment dismissing the defendant's second postconviction petition. People v. Walker, 335 Ill.App.3d 1224 (2002) (unpublished order under Supreme Court Rule 23).
¶ 21 The Defendant's Motion for Leave to File a Successive Postconviction Petition
¶ 22 On July 22, 2019, the defendant filed a pro se motion for leave to file a successive postconviction petition. The first paragraph of that motion read as follows: "That the issues being raised in said motion are of Constitutional Value and have never been raised on direct appeal or co-lateral [sic] review. That these issues being raised are newly discovered issues and not known at time of trial / plea agreement, direct appeals or any co-lateral [sic] reviews. And as such need to be reviewed and addressed by this court." (The motion did not specifically address cause or prejudice.)
¶ 23 In the motion for leave, the defendant sought to present six postconviction claims. Those claims are not models of clarity. They will be discussed individually infra.
¶ 24 On August 28, 2019, the court found that all of the claims that the defendant sought to raise in a successive postconviction petition either (1) had been raised previously, and had been found meritless, and were therefore barred by res judicata, or (2) did not meet the cause-and-prejudice test. The defendant perfected the instant appeal.
¶ 25 ANALYSIS
¶ 26 This appeal is from an order denying the defendant's motion for leave to file a successive petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). Appellate review is de novo. People v. Robinson, 2020 IL 123849, ¶ 39. This court may affirm on any ground of record. People v. Johnson, 208 Ill.2d 118, 129 (2003).
¶ 27 As previously mentioned, the defendant's appointed appellate attorney, OSAD, has filed a Finley motion to withdraw as counsel. In its memorandum in support of the Finley motion, OSAD examines each of the claims that the defendant sought to present to the circuit court, and concludes that each lacks merit. This court agrees with OSAD's assessment.
¶ 28 The Act provides a method by which any person imprisoned in the penitentiary may assert that his conviction resulted from a substantial violation of his federal or state constitutional rights. 725 ILCS 5/122-1(a)(1) (West 2018). A proceeding under the Act is a collateral proceeding, not an appeal from the underlying judgment of conviction. People v. English, 2013 IL 112890, ¶ 21. Therefore, a postconviction proceeding "allows inquiry only into constitutional issues that were not, and could not have been, adjudicated on direct appeal." People v. Pitsonbarger, 205 Ill.2d 444, 455-56 (2002). Issues that were raised and decided on direct appeal are barred from consideration by the doctrine of res judicata, while issues that could have been raised, but were not, are considered waived. Id. at 456. In the postconviction context, waiver is "better referred to as 'forfeiture.'" People v. Daniel, 379 Ill.App.3d 748, 749 (2008).
¶ 29 A postconviction proceeding commences with the filing of a petition in the circuit court. 725 ILCS 5/122-1(b) (West 2018). In general, the Act permits a defendant to file only one petition for postconviction relief, unless he has obtained leave of court to do so. Id. § 122-1(f). Leave of court will be granted (1) if the defendant meets the cause-and-prejudice test or (2) if he shows a colorable claim of actual innocence based on evidence that is newly-discovered, material, not merely cumulative, and of such a conclusive character that it would likely change the result on retrial. People v. Edwards, 2012 IL 111711, ¶¶ 23-24, 32; Pitsonbarger, 205 Ill.2d at 459. In addition, "[w]here jurisdiction is lacking, any resulting judgment rendered is void and may be attacked either directly or indirectly at any time." People v. Davis, 156 Ill.2d 149, 155 (1993).
¶ 30 Section 122-1(f) of the Act addresses and defines the two elements of the cause-and-prejudice test:
"Leave of court may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure. For purposes of this subsection (f): (1) a prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice by demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process." 725 ILCS 5/122-1(f) (West 2018).
The defendant must satisfy both elements of the cause-and-prejudice test-that is, he must show both cause and prejudice-in order to win the right to file a successive postconviction petition. Pitsonbarger, 205 Ill.2d at 464. However, he must set out only a prima facie case. People v. Bailey, 2017 IL 121450, ¶ 24. The cause-and-prejudice test must be applied to each individual claim raised by the defendant. Pitsonbarger, 205 Ill.2d at 462. Leave to file a successive petition will be denied only where "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.
¶ 31 In the instant defendant's motion for leave to file a successive postconviction petition, the first of the proposed postconviction claims concerned the indictment returned by the grand jury against the defendant in June 1978. The defendant alleged that the indictment charged him with "a regular felony murder," and that it was "a wrong and incomplete indictment" that does not support his 80-year sentence. The defendant also alleged that the eighth amendment (U.S. Const., amend. VIII) and the one-act, one-crime rule were violated by his consecutive sentences of 80 years and 60 years. First of all, the indictment did not charge the defendant with felony murder (see Ill. Rev. Stat. 1977, ch. 38, ¶ 9-1(a)(3)), even though the murder of Elsie Wallace occurred during a robbery, and therefore it could have been charged that way. The indictment charged him with intentional murder. See id. ¶ 9-1(a)(1). Second, the jumble of specific issues raised in this claim were either raised and decided in the direct appeal to this court, or they could have been raised in the direct appeal but were not. See People v. Walker, 113 Ill.App.3d 1074 (1983). In other words, they either are barred by res judicata or have been forfeited. The defendant also did not show cause for failing to raise this claim in his initial postconviction proceeding, which began in 1986 and ended in 1994.
¶ 32 The defendant's second proposed postconviction claim concerned "the line-up procedures at the St. Clair County Jail"-including "one male probable witness" who yelled," 'Yeh [sic], that's him'" loudly enough for "other probable witnesses to hear." According to the defendant, these procedures were "unjust and completely tainted" and "in violation of his 6th amendment rights under the U.S. Constitution." This claim also could have been raised, but was not raised, in the direct appeal, and it is therefore forfeited. Plus, this claim was raised and decided in the defendant's first postconviction proceeding, which ended in January 1994-contrary to his assertion, in his motion for leave to file a successive petition, that this issue never before had been raised in a postconviction proceeding.
¶ 33 The third proposed postconviction claim concerned the quality of legal representation the defendant had received in the appeal from the dismissal of the pro se postconviction petition that he had filed in August 2000. That postconviction petition, which was the defendant's second, complained that his extended-term and consecutive sentences violated the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). In the appeal-which was People v. Walker, 335 Ill.App.3d 1224 (2002) (unpublished order under Supreme Court Rule 23)-OSAD and a contract attorney filed a Finley motion to withdraw as counsel, which this court granted. In the third proposed claim in his motion for leave to file a successive postconviction petition, the defendant alleged that his appellate attorneys were "ineffective *** for failing to raise *** sentencing issues dealing with [the defendant's] extended term and consecutive sentences on appeal." This claim clearly fails as a matter of law. First, the Apprendi decision does not apply to the consecutive sentences imposed here. People v. Carney, 196 Ill.2d 518, 536 (2001). Second, the Apprendi decision does not apply-at all-to criminal cases in which direct appeals were exhausted before Apprendi was decided; Apprendi does not apply retroactively to those cases. People v. De La Paz, 204 Ill.2d 426, 439 (2003). Since the defendant's direct appeals were exhausted in 1984, before Apprendi was decided in 2000, Apprendi can have no impact on the defendant's case. Nothing more needs to be said about this proposed claim.
¶ 34 The fourth proposed claim in the defendant's motion for leave to file a successive postconviction petition was that the sentencing court was "Highly Prejudicial" when it sentenced the defendant in June 1981, and the sentences imposed were unlawful. The issues herein were raised and decided on direct appeal, or they could have been raised but were not, and they are therefore barred from consideration by the doctrine of res judicata or forfeiture.
¶ 35 The fifth proposed claim was that the circuit court led a "conspiracy" involving the state's attorney and defense counsel against the defendant, from the time the defendant entered his nonnegotiated pleas of guilty (in February 1979) to the time of his final sentencing (in June 1981). According to the defendant, evidence of this conspiracy could be found in "the sentencing transcripts" and in "the complete record," and the defendant paraphrased several portions of those late 1970s, early 1980s transcripts that purportedly evidenced this "conspiracy." However, these issues easily could have been raised in the direct appeal to this court in the early 1980s, and are therefore forfeited.
¶ 36 Furthermore, many of those paraphrased portions of transcripts that allegedly evidenced a "conspiracy" were, in fact, mentioned in the amended petition for postconviction relief that the defendant filed, through counsel, in June 1993. In that amended petition, the defendant claimed that the court was "prejudiced" against him, there was a reference to defense counsel's past employment with the state's attorney, and there was a reference to threats made against the defendant and his family members by the coindictee's brothers. It cannot honestly be said, as the defendant wrote in his motion for leave to file a successive petition, that "the issues being raised *** have never been raised on co-lateral [sic] review."
¶ 37 Finally, the defendant's sixth proposed claim was that two of the "state witnesses," Kevin Dotson and Terry Wallace (who was one of the four attempted-murder victims), were boyfriend and girlfriend in the late 1970s, and that they "backed-up one anothers [sic] stories and in court identifications and that they knew the Bainter Brothers and were friends with them." The defendant added that defense counsel and the state's attorney were "ineffective for failing to explore the background of these two witnesses and other witnesses also for this type of information and credibility of witness testimony." According to the defendant, he "only recently *** was made aware" of those two witnesses' romantic relationship in the late 1970s. The only evidence supporting this allegation was an unnotarized affidavit from Denise Durham, whom the defendant described in his motion for leave to file a successive postconviction petition as his sister. In her affidavit, dated June 28, 2019, Durham wrote that "to the best of [her] knowledge," witness Kevin Dotson "was dating one girl who was shot in the arm." That is the full extent of what Durham wrote about Dotson and the "girl who was shot in the arm," presumably Terry Wallace. Most of the affidavit concerned violent behaviors she had observed in Paul Bainter and how "everyone [she] knew was scared of all Bainters."
¶ 38 Of all the proposed postconviction claims in the defendant's motion for leave to file a successive petition, this claim is the only one that is completely new, as the circuit court noted in its order denying the motion for leave. However, even if this court puts aside the fact that Durham's affidavit was unnotarized (and that no explanation for the lack of notarization was provided), the defendant did not satisfy the prejudice element of the cause-and-prejudice test. As OSAD rightly notes in the legal memorandum accompanying its Finley motion, the defendant's allegations lack "sufficient facts to determine *** how this actually affected his case." Too much is left to speculation about a possible romantic relationship, decades ago, and how it might have affected this case, in which the defendant pleaded guilty in February 1979.
¶ 39 CONCLUSION
¶ 40 The circuit court did not err in denying the defendant's motion for leave to file a successive postconviction petition. Beyond that, this court has thoroughly reviewed the record on appeal, and has been unable to identify any (uncorrected) error. No argument to the contrary would have merit. Accordingly, OSAD must be granted leave to withdraw as the defendant's appellate counsel, and the judgment of the circuit court must be affirmed.
¶ 41 Motion granted; judgment affirmed.