People v. Alsup

2020 IL App (5th) 170034-U

• Court: Appellate Court of Illinois
• Decided: June 24, 2020
• Docket: 5-17-0034
• Status: Unpublished

Opinion

2020 IL App (5th) 170034-U NOTICE NOTICE Decision filed 06/24/20. The This order was filed under text of this decision may be NO. 5-17-0034 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Peti ion for IN THE by any party except in the Rehearing or the disposition of limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 03-CF-3441 ) RICHARD A. ALSUP, ) Honorable ) Jennifer L. Hightower, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

PRESIDING JUSTICE WELCH delivered the judgment of the court. Justices Barberis and Overstreet concurred in the judgment.

ORDER

¶1 Held: Where the defendant failed to show cause for not including his postconviction claims in a previous postconviction proceeding, and any argument to the contrary would lack merit, appointed appellate counsel is granted leave to withdraw, and the circuit court’s order denying the defendant’s motion for leave to file a successive postconviction petition is affirmed.

¶2 More than 15 years ago, a jury found the defendant, Richard A. Alsup, guilty of knowing

first-degree murder and three other felony offenses. The circuit court subsequently sentenced him

to a lengthy term of imprisonment for the murder count and lesser terms for the three other counts.

His appeal from the judgment of conviction was unsuccessful. His collateral attacks on the

judgment, in the form of petitions for postconviction relief, were unsuccessful. In November 2016,

the defendant filed with the circuit court a motion for leave to file a successive postconviction

petition. The circuit court denied the motion, after finding that the defendant had failed to show 1 cause for not including his postconviction claims in a previous postconviction proceeding. The

instant appeal is from that denial order.

¶3 The defendant’s appointed attorney on appeal, the Office of the State Appellate Defender

(OSAD), has concluded that this appeal lacks merit. On that basis, OSAD has filed a motion to

withdraw as counsel (see Pennsylvania v. Finley, 481 U.S. 551 (1987)), along with a memorandum

of law in support thereof. OSAD properly gave notice to the defendant, who has filed with this

court an objection to the Finley motion. This court has examined OSAD’s motion and

memorandum of law, the defendant’s written objection, and the entire record on appeal. This court

concludes that this appeal does not present any issue of arguable merit. Accordingly, OSAD is

granted leave to withdraw as counsel, and the judgment of the circuit court is affirmed.

¶4 BACKGROUND

¶5 In December 2003, the defendant stole a van in Florissant, Missouri. From there, he led

police on a high-speed chase across the Mississippi River and into Granite City, Illinois. The chase

ended when the defendant crashed the stolen van into an automobile that was being driven by John

C. Smith. The impact of the crash ejected Smith from his car, resulting in injuries that quickly led

to Smith’s death. In January 2005, a jury found the defendant guilty of knowing first-degree

murder, aggravated possession of stolen firearms, aggravated possession of a stolen motor vehicle,

and unlawful possession of weapons by a felon. On these four charges, the circuit court sentenced

the defendant to imprisonment for terms of 40 years, 10 years, 10 years, and 5 years, respectively.

The two 10-year sentences and the 5-year sentence were concurrent to one another but consecutive

to the 40-year sentence.

¶6 On direct appeal, the defendant argued that the State had failed to prove him guilty of first-

degree murder and that the trial court had abused its discretion in admitting two of the State’s

2 exhibits into evidence. This court disagreed with both of the defendant’s arguments and affirmed

the judgment of conviction. People v. Alsup, 373 Ill. App. 3d 745 (2007).

¶7 In March 2008, the defendant filed a pro se petition for postconviction relief. It was his

first postconviction petition. The defendant claimed that (1) he was deprived of due process and

equal protection when he was indicted beyond the applicable statutory deadline following his

arrest, and he was deprived of the effective assistance of trial counsel and direct-appeal counsel

when they failed to raise the issue; (2) trial counsel provided ineffective assistance when he failed

to argue to the jury that the defendant was innocent of aggravated possession of stolen firearms,

aggravated possession of a stolen motor vehicle, and unlawful possession of weapons by a felon,

and direct-appeal counsel was constitutionally ineffective for not raising the issue; (3) trial counsel

and direct-appeal counsel were constitutionally ineffective for failing to argue that the circuit court

lacked jurisdiction over his case; (4) he was deprived of due process and equal protection when

the State relied on perjured testimony in order to obtain an indictment against him, and trial and

direct-appeal counsel were constitutionally ineffective for failing to raise the issue; (5) he was

deprived of due process and equal protection when the trial prosecutor made a particular comment

during closing argument to the jury, and trial and direct-appeal counsel were constitutionally

ineffective for failing to raise the issue; (6) trial counsel was constitutionally ineffective for failing

to argue, at sentencing, that the defendant’s mental-health diagnoses were mitigating factors, and

direct-appeal counsel was constitutionally ineffective for failing to raise the issue; (7) trial counsel

and direct-appeal counsel were constitutionally ineffective for failing to argue that the defendant

never should have been charged with first-degree murder and for failing to argue that the jury

should have been instructed on involuntary manslaughter as a lesser included offense; (8) his 40-

year prison sentence was so excessive as to qualify as cruel and unusual punishment; and (9) he

3 was deprived of due process when his direct appeal was argued before a panel of two judges, and

direct-appeal counsel was constitutionally ineffective for not filing a motion for rehearing on the

ground that the defendant’s criminal conduct did not meet the definition of murder.

¶8 In May 2008, the circuit court summarily dismissed the March 2008 petition, after finding

it frivolous and patently without merit. On appeal, the defendant’s sole argument was that he

stated the gist of a constitutional claim when he alleged, in claim 6 of his petition, that trial counsel

was ineffective for failing to argue that the defendant’s mental-health diagnoses were mitigating

factors at sentencing. This court disagreed with the defendant and affirmed the summary dismissal

of his initial postconviction petition. See People v. Alsup, No. 5-08-0292 (July 1, 2009)

(unpublished order pursuant to Illinois Supreme Court Rule 23).

¶9 In September 2014, the defendant mailed to the circuit court a handwritten letter asking for

certain modifications to his sentences, and complaining about the admission of certain evidence,

and the giving of a certain jury instruction, at his trial. The circuit court apparently treated the

defendant’s letter as a postconviction petition. In December 2014, the circuit court entered a

written order stating that the letter failed to comply with the requirements of the Post-Conviction

Hearing Act and that the defendant’s requests were “denied.”

¶ 10 In January 2016, the defendant filed a pro se motion for leave to file a successive

postconviction petition. The motion for leave was accompanied by the successive petition that he

sought to file. In the motion, the defendant stated that he did not include in his initial

postconviction petition the claims that he sought to present in his successive petition because, at

the time he prepared the initial petition, he was “unaware of the constitutional merits of these

issues.” He became aware of the issues’ merits after “having the opportunity to converse with

others who brought the issues to [his] attention.” Each of the five claims in the successive

4 postconviction petition concerned trial counsel’s performance. The defendant alleged that trial

counsel (1) provided ineffective assistance when he failed to inform the defendant of “any plea

offer” or “any pre-trial discussions with prosecution”; (2) provided ineffective assistance when he

failed to move to suppress statements that the defendant made to police interrogators while in

custody, on the ground that the statements were involuntary; (3) provided ineffective assistance

when he failed to object to the trial court’s erroneous jury instructions on the mental state of

knowledge; (4) “labored under [a] conflict of interest” as evidenced by his failure to communicate

meaningfully with the defendant pretrial, his failure to argue the defendant’s innocence to the jury,

and his failure to subject the State’s case to meaningful adversarial testing; and (5) provided

ineffective assistance when he failed to object to the imposition of consecutive sentences.

¶ 11 In a written order, the circuit court found that the defendant had failed to meet the cause-

and-prejudice test for a successive petition, and the court denied the motion for leave to file a

successive petition “as repetitive of previously filed petitions.” The defendant perfected an appeal

from that order. In this court, though, he moved to dismiss the appeal, and the appeal was

dismissed. See People v. Alsup, No. 5-16-0051 (June 23, 2016) (unpublished dispositional order).

¶ 12 On November 16, 2016, the defendant filed in the circuit court a 15-page pro se motion for

leave to file a successive petition for postconviction relief. This motion is the subject of the instant

appeal. The motion was accompanied by a 33-page pro se successive petition for postconviction

relief. Attached to the successive petition were several pages of excerpts from statutes and court

opinions.

¶ 13 In the motion for leave to file a successive postconviction petition, the defendant addressed

the matters of cause and prejudice. In his discussion of cause, the defendant stated that the issues

he sought to raise in his successive petition had not been raised previously due to his “learning

5 disability, attention deficit disorder, low IQ level, [and] 7th grade level education” combined with

“little to no access to prison law library, constant prison lock-downs, [and] no one on one legal

assistance.” The defendant explained that his disabilities had prevented him from realizing the

merit of his issues until other inmates eventually enlightened him. The defendant’s discussion of

prejudice was not as clear or straightforward as his discussion of cause; it was included or implicit

in a preview of the issues presented in the successive petition itself, a preview that consumed most

of the 15-page motion.

¶ 14 In the successive postconviction petition that the defendant sought leave to file, the

defendant presented six claims of constitutionally ineffective assistance by trial counsel. In his six

claims, the defendant made the following allegations against counsel:

(1) Prior to trial, counsel failed to inform the defendant of a plea offer from the State and

failed to offer his professional opinion on the plea offer. The defendant did not describe the terms

of the claimed plea offer; he merely asserted that a plea offer was made, and that counsel had an

obligation to inform him of it and to offer his professional opinion on it. In the midst of discussing

this claim about a plea offer, the defendant very briefly asserted a wide assortment of other alleged

failings by trial counsel. The defendant asserted that trial counsel failed to inform him that a fitness

examination had been requested, failed to be present during a fitness examination so as to advise

the defendant, failed to discuss with the defendant the fitness examination report, failed to discuss

with the defendant the content of pretrial conferences, failed to inform the defendant that the

indictment had been amended a few days before trial, failed to inform the defendant that he would

request a lesser-included-offense instruction, failed to include in a posttrial motion a claim that the

State had failed to disclose important impeachment evidence, and failed to discuss with the

defendant the presentence investigation report. In addition to all of those failings, the defendant

6 also stated that trial counsel “failed to do a pre-trial investigation regarding mitigating evidence,

possible witnesses, and evidence of a second suspect only known as ‘Mike’, who could have been

driving the vehicle.” The defendant did not offer any additional information about “Mike” and

did not explain how he came to learn of the existence of “Mike.” The defendant also asserted that

the State failed to disclose evidence that he could have used to impeach State witnesses, but the

defendant did not describe the nature or character of this evidence and did not identify the

witnesses who might have been impeached with it. (The claim that trial counsel failed to inform

the defendant about a plea offer was also included in the successive postconviction petition that

the defendant unsuccessfully sought to file in January 2016.)

(2) Counsel failed to file a motion to suppress statements that the defendant made to police

interrogators while in custody, on the ground that the statements were involuntary. (This claim

was also included in the successive postconviction petition that the defendant unsuccessfully

sought to file in January 2016.)

(3) Counsel failed to object to the trial court’s erroneous jury instructions on the mental

state of knowledge. (This claim was also included in the successive postconviction petition that

the defendant unsuccessfully sought to file in January 2016.)

(4) Counsel failed to object to the imposition of consecutive sentences. (This claim was

also included in the successive postconviction petition that the defendant unsuccessfully sought to

file in January 2016.)

(5) At trial, counsel failed to provide the defendant with any kind of defense. During

opening statement, he told the jury that the defendant was guilty. He failed to present evidence

that “a second suspect known as ‘Mike’, who is mentioned in police reports and grand jury

testimony, which would have raised doubt [as] to who was actually driving the vehicle.” He also

7 failed to present an argument that specifically addressed the charge of knowing first-degree

murder. (Part of this claim is reminiscent of the second claim presented in the defendant’s initial

postconviction petition, filed in March 2008, wherein the defendant complained that trial counsel

failed to argue to the jury that the defendant was innocent of aggravated possession of stolen

firearms, aggravated possession of a stolen motor vehicle, and unlawful possession of weapons by

a felon. This claim also is reminiscent of the fourth claim in the successive postconviction petition

that the defendant unsuccessfully sought to file in January 2016, wherein the defendant alleged

that counsel failed to argue to the jury that the defendant was innocent and failed to subject the

State’s case to meaningful adversarial testing.)

(6) Counsel failed to move to dismiss the charges on the grounds that the defendant was

both indicted and brought to trial beyond the applicable statutory deadlines following his arrest.

In the midst of discussing this claim of ineffective assistance by trial counsel, the defendant briefly

asserted that direct-appeal counsel was ineffective for not raising this issue. (This claim is

reminiscent of the first claim presented in the defendant’s initial postconviction petition, filed in

March 2008, wherein the defendant claimed that he was deprived of due process and equal

protection when he was indicted beyond the applicable statutory deadline following his arrest, and

that he was deprived of the effective assistance of trial counsel and direct-appeal counsel when

they failed to raise the issue.)

¶ 15 On January 3, 2017, the circuit court entered an order denying the defendant’s November

16, 2016, motion for leave to file a successive petition. The court stated that the defendant had

failed to show cause as to why he had not included his postconviction claims in any of his earlier

postconviction petitions. The defendant perfected the instant appeal from the denial order.

8 ¶ 16 ANALYSIS

¶ 17 This appeal is from the circuit court’s denial of leave to file a successive petition for

postconviction relief. Appellate review is de novo. People v. McDonald, 405 Ill. App. 3d 131,

135 (2010). As previously noted, the defendant’s appointed attorney in this appeal, OSAD, has

filed a Finley motion for leave to withdraw as counsel, along with a memorandum of law in support

of the motion. (Oddly, OSAD did not include a standard of review in its motion or memorandum.)

¶ 18 In its memorandum, OSAD suggests two potential issues on appeal: (1) whether the

defendant satisfied the cause-and-prejudice test for the filing of a successive postconviction

petition, and (2) whether the defendant presented a claim of actual innocence.

¶ 19 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2016)) contemplates

the filing of only one postconviction petition. Id. § 122-1(f); People v. Jones, 191 Ill. 2d 194, 198

(2000). Where a criminal defendant files an initial postconviction petition, and the circuit court

rules on that petition, the ruling has res judicata effect with respect to all claims that were raised,

and all claims that could have been raised, in the initial petition. Jones, 191 Ill. 2d at 198. “As a

consequence, a defendant faces a daunting procedural hurdle when bringing a successive post-

conviction petition.” Id. More specifically, the defendant must obtain leave of court to file a

successive petition, and in order to obtain leave, he must satisfy the cause-and-prejudice test. 725

ILCS 5/122-1(f) (West 2016); Jones, 191 Ill. 2d at 199. That is, he must establish both “good

cause for failing to raise his claims in prior proceedings” and “actual prejudice resulting from the

claimed errors.” Jones, 191 Ill. 2d at 199. Cause is “some objective factor external to the defense”

that impeded the defendant’s ability to raise the claim in an earlier proceeding. Id. Unless the

defendant satisfies the cause-and-prejudice test, the claims in a successive petition are barred; they

will not be considered on the merits. Id.

9 ¶ 20 This court observes that of the claims contained in the successive postconviction petition

that the defendant was denied leave to file, almost all of them were raised in previous

postconviction proceedings. This court’s detailed description of those claims, supra, makes that

point clear. As a result of the circuit court’s rulings in those previous postconviction proceedings,

almost all of the claims in the defendant’s latest successive petition are obviously res judicata.

¶ 21 According to OSAD, the defendant’s latest successive petition contains only one new claim

—that trial counsel failed to assert the defendant’s right to a speedy trial. There is no good reason

for not raising that claim in a previous postconviction proceeding. In his motion for leave to file

the successive petition, the defendant stated, essentially, that he did not raise that claim previously

because he did not previously realize that the claim existed and had merit. A simple failure to

recognize a factual or legal basis for a claim does not constitute cause for a procedural default.

See Murray v. Carrier, 477 U.S. 478, 486-87 (1986).

¶ 22 A defendant will be excused from satisfying the cause-and-prejudice test if his successive

postconviction petition presents a cognizable claim of actual innocence. People v. Ortiz, 235 Ill.

2d 319, 330-31 (2009). OSAD notes that the defendant’s successive petition includes mention of

“Mike,” a person who, according to the petition, “could have been driving the vehicle” that

slammed into John C. Smith’s automobile, killing Smith. “Mike” is mentioned in the first claim

in the successive petition, as described supra. The defendant’s sketchy references to “Mike”

cannot possibly amount to a cognizable claim of actual innocence. The defendant did not describe

any evidence that was new or that could possibly change the result of the defendant’s trial. See id.

at 333.

10 ¶ 23 CONCLUSION

¶ 24 For the foregoing reasons, the circuit court did not err in denying the defendant leave to

file his successive postconviction petition. Any argument to the contrary would have no merit.

Accordingly, OSAD is granted leave to withdraw as counsel, and the judgment of the circuit court

is affirmed.

¶ 25 Motion granted; judgment affirmed.