People v. Anderson

2021 IL App (1st) 192307-U

Opinion

2021 IL App (1st) 192307-U No. 1-19-2307 Order filed August 20, 2021 Fifth Division

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). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 16 CR 4237 ) KENNETH ANDERSON, ) Honorable ) Ursula Walowski Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE DELORT delivered the judgment of the court. Justices Hoffman and Cunningham concurred in the judgment.

ORDER

¶1 Held: We affirm the circuit court’s summary dismissal of defendant’s postconviction petition because his claim for ineffective assistance of counsel on direct appeal lacked merit and the circuit court did not improperly orally dismiss the petition.

¶2 Defendant Kenneth Anderson appeals from the dismissal of his pro se petition pursuant to

the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (2018)), alleging that his petition

set forth an arguable claim for ineffective assistance of counsel on direct appeal, and that the circuit

court improperly dismissed his petition orally. We affirm. No. 1-19-2307

¶3 Defendant was charged by information with five counts arising from an incident on March

6, 2016, including count I for vehicular invasion (720 ILCS 5/18-6(a) (West 2016)), count II for

robbery, counts III and IV for aggravated battery in a public place (720 ILCS 5/12-3.05(c) (West

Supp. 2015)), and count V for unlawful restraint (720 ILCS 5/10-3(a) (West 2016)). Before trial,

the State amended count II from robbery to attempt robbery (720 ILCS 5/18-1(a) (West 2016);

720 ILCS 5/8-4 (West 2016)).

¶4 During defendant’s bench trial, Chicago police officer Eric James testified that on March

6, 2016, he and his partner were on patrol near the 600 block of North Ridgeway Avenue in

Chicago when James looked out the passenger window and saw a man “halfway into the *** driver

side window of a vehicle.” James identified defendant as that man in court. As the police vehicle

passed, James heard defendant say, “give me your money.” James asked his partner to reverse and

approach the vehicle, and as he did so, James observed defendant still in the window of the other

vehicle. The officers activated their vehicle’s emergency lights and “conducted an investigatory

stop.”

¶5 The officers instructed defendant to approach the police vehicle, and he complied. The

officers then detained defendant and approached the other vehicle, where another man, Mario

Lituma 1, sat in the front driver’s seat. James observed that Mario was “distraught,” and had a

bloody lip and left eye laceration. James requested a translator because Mario only spoke Spanish,

and Chicago police officer Saul Pacheco arrived and translated Mario’s account of the incident.

The officers then arrested defendant.

1 Because Mario Lituma and his son Alex Lituma both testified at trial, we refer to them by their first names.

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¶6 On cross-examination, James testified that the police vehicle was 15 to 20 feet away and

traveling at “no more than five miles an hour” when he saw defendant lean into the window of

Mario’s vehicle and demand money. James did not search Mario’s vehicle, recover narcotics from

defendant’s person, or see anyone strike someone else during the incident.

¶7 Pacheco testified that he arrived on the scene to translate for Mario. Defendant attempted

to flee, but Pacheco ultimately transported him to the police station.

¶8 Mario testified that on March 6, 2016, he drove to a home on the 600 block of North

Ridgeway to pick up his son, Alex Lituma. While Mario was parked outside, a woman approached

and tapped on Mario’s window. The woman asked for a dollar, then reached inside the window

and lowered it completely, at which point a man appeared and said, “give me your money, your

phone, your wallet, or I’m going to kill you.” Mario identified defendant as that man in court.

Defendant hit Mario on the left side of his face, which broke his dentures and caused an injury to

his left eye. Eventually, the police arrived and the attack stopped.

¶9 On cross-examination, Mario testified that 10 minutes elapsed from the time the woman

first approached until the police arrived. Mario denied selling anything to defendant or accepting

money from him. When the police arrived, they searched Mario’s vehicle.

¶ 10 Alex testified that on March 6, 2016, he was in his home, waiting for Mario, when he heard

a vehicle’s horn outside. Alex exited and saw “a man hitting” Mario in the head. He only saw the

man’s back. Additionally, he saw a woman on the passenger side of Mario’s vehicle attempt to

open the passenger-side door. Alex told the man and woman he would call the police, and he then

returned inside after the woman approached him.

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¶ 11 Defendant testified that he had multiple prior convictions, including for retail theft and

burglary. On March 6, 2016, he was near the home on the 600 block of North Ridgeway with a

woman named Maria to buy drugs from Mario, whom defendant knew as “Al Chopo.” During the

transaction, Maria asked Mario about his face, and Mario relayed he had been in a bar fight.

Defendant gave Mario money, but before Mario could retrieve the drugs, police officers arrived

and arrested defendant. Defendant never struck Mario in the face or attempted to take anything

from him.

¶ 12 On cross-examination, defendant stated that he purchased drugs from Mario on two prior

occasions. Following his arrest, the officers Mirandized defendant at the police station, and he

answered their questions. He denied telling officers that he bought $25 worth of crack cocaine

from Mario, discovered it was fake, and tried to recover his money.

¶ 13 In rebuttal, the State called Detective Patrick Staunton, who testified that he spoke to

defendant at the police station after he was Mirandized. Defendant stated that he purchased crack

cocaine from Mario, discovered it was fake, and attempted to retrieve his money. Mario struck

defendant, who struck Mario in return. Defendant did not mention the name Al Chopo. On cross-

examination, Staunton acknowledged that no one memorialized defendant’s statement.

¶ 14 Following closing arguments, the court found defendant guilty on all counts. The court

denied defendant’s motion to reconsider or for a new trial.

¶ 15 Defendant’s presentence investigation (PSI) report showed that he was 56 years old at the

time of arrest. He had 12 prior convictions, including aggravated assault in 1979; disorderly

conduct in 1981; robbery in 1983 and 1990; burglary in 1990, 1995, and 2005; criminal trespass

to a vehicle in 1994; receipt of stolen goods in 1995; retail theft in 2009; and theft in 1981 and

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2014. He reported a “great” childhood, but was expelled from high school. He worked when not

incarcerated, reported previous membership in the Vice Lords gang, and had 17 children. He was

diagnosed with “PTS” in 2001, and reported previously considering suicide and an extensive

history of substance abuse dating to childhood.

¶ 16 At sentencing, the State relayed that defendant was subject to a Class X term based on

multiple prior Class 2 felony convictions, including robbery in 1990 and three burglaries from

1990, 1994, and 1995. The State emphasized the injuries Mario suffered, and argued defendant

was a “career thief” who “definitely need[s] to be off the street for some time.”

¶ 17 In mitigation, defense counsel argued that defendant worked when not incarcerated,

suffered from untreated substance abuse issues which may have led to his criminal conduct in this

incident, and had dependent children. In allocution, defendant stated, “Not guilty. I didn’t do

s***.”

¶ 18 The court imposed concurrent sentences of 12 years’ imprisonment on count I for vehicular

invasion, an extended term of 8 years’ imprisonment on count II for attempt robbery, and 5 years’

imprisonment for count III for aggravated battery in a public place. In so finding, the court stated

that it considered the evidence in aggravation and mitigation and the statutory sentencing factors.

The court merged count IV into count III and count V into count II. Defendant did not file a motion

to reconsider sentence.

¶ 19 Defendant appealed, arguing that the extended-term sentence for attempt robbery was

improper. This court reduced his attempt robbery sentence to five years’ imprisonment, corrected

the mittimus and certain fines and fees, and otherwise affirmed. People v. Anderson, 2019 IL App

(1st) 170025-U.

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¶ 20 On August 7, 2019, defendant filed his pro se postconviction petition, in which he alleged,

in relevant part, that appellate counsel was ineffective for not raising an excessive sentence claim

on direct appeal.

¶ 21 On September 27, 2019, the circuit court summarily dismissed the petition, stating in open

court that it was “frivolous” and lacked “any merit.” The court recorded the decision on a criminal

disposition sheet, noted it in a docket entry for that date, and notified defendant of its decision, but

did not issue an order detailing its findings of fact or conclusions of law.

¶ 22 On appeal, defendant first argues that the circuit court erred by summarily dismissing his

postconviction petition because it set forth an arguable claim for ineffective assistance of counsel

on direct appeal for not challenging his sentence.

¶ 23 The Act provides a mechanism for criminal defendants to challenge their convictions based

on constitutional violations. People v. Hodges, 234 Ill. 2d 1, 9 (2009). A petition brought pursuant

to the Act proceeds in three stages. People v. Custer, 2019 IL 123339, ¶ 29. At the first stage, the

defendant need only present the “gist” of a constitutional claim. Id. To show the gist of a claim,

the defendant must allege sufficient facts to arguably raise a constitutional violation. See People

v. Brown, 236 Ill. 2d 175, 184 (2010). Where the petition fails to set out the gist of a constitutional

claim, the circuit court should dismiss it as frivolous or patently without merit. 725 ILCS 5/122-

2.1 (West 2018). We review a circuit court’s summary dismissal of a postconviction petition at the

first stage de novo. Hodges, 234 Ill. 2d at 9.

¶ 24 A criminal defendant has the right to effective assistance on direct appeal. People v. Ross,

229 Ill. 2d 255, 269 (2008). To establish a claim for ineffective assistance on direct appeal, a

defendant must demonstrate that appellate counsel engaged in deficient conduct, and that this

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conduct prejudiced the defendant. Hodges, 234 Ill. 2d at 17. At the first stage of postconviction

proceedings, the defendant need only allege sufficient facts to show arguably deficient conduct

and arguable prejudice. Id. The defendant must demonstrate both prongs, and if a defendant cannot

establish one prong, the court may deny the claim on that basis alone. People v. Williams, 2020 IL

App (1st) 162512, ¶ 83. Where a defendant alleges ineffective assistance of counsel for failure to

make a certain claim on direct appeal, the reviewing court must analyze the underlying claim to

determine if it is meritorious. People v. Childress, 191 Ill. 2d 168, 175 (2000). Appellate counsel

need not raise any conceivable claim on direct appeal, and cannot be found ineffective for failing

to raise a non-meritorious issue. People v. Wesley, 2019 IL App (1st) 170442, ¶ 20.

¶ 25 Defendant’s underlying claim here is that his 12-year sentence for unlawful vehicular

invasion was excessive. A sentencing court has broad discretion in imposing sentence. People v.

Patterson, 217 Ill. 2d 407, 448 (2005). Under the Illinois Constitution, a court must consider the

seriousness of the offense and the defendant’s rehabilitative potential. Ill. Const. 1970, art. I, § 11.

The sentencing court need not weigh a defendant’s mitigating factors above the seriousness of the

offense. People v. Weatherspoon, 394 Ill. App. 3d 839, 862 (2009). Additionally, the court will be

presumed to have considered all relevant factors absent a showing from the record to the contrary.

People v. Brown, 2018 IL App (1st) 160924, ¶ 9. A reviewing court should not substitute its

judgment for that of the sentencing court merely because it would have weighed the factors

differently. Id. ¶ 8. Sentencing decisions are reviewed for abuse of discretion, and a sentence that

is within the sentencing range should not be set aside unless it is manifestly disproportionate to the

offense or greatly at variance with the spirit of the law. People v. Villalobos, 2020 IL App (1st)

171512, ¶ 72.

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¶ 26 Here, defendant’s PSI report showed 12 prior convictions, including for aggravated assault,

multiple thefts, multiple robberies, multiple burglaries, retail theft, and receipt of stolen property.

He reported mental health and substance abuse issues, as well as previous work history when not

incarcerated. He also reported prior gang membership and having 17 children. At sentencing,

defense counsel referenced defendant’s previous employment, substance abuse issues, and

children, and requested a lighter sentence. The court imposed 12 years’ incarceration, which was

within the 6-to-30-year Class X sentencing range to which defendant was subject. See 730 ILCS

5/5-4.5-25 (West 2016). The court stated that it considered the evidence in aggravation and

mitigation, and the appropriate statutory factors.

¶ 27 On this record, we find that defendant’s underlying claim for excessive sentence lacked

merit. The sentence was within the applicable range, and thus presumptively proper. People v.

Guerrero, 2020 IL App (1st) 172156, ¶ 52. Accordingly, defendant would have had to demonstrate

that the sentence was manifestly disproportionate to the crime or greatly at variance with the spirit

of the law. Defendant could not have made this showing. First, his sentence was not manifestly

disproportionate to his conduct because his crimes of vehicular invasion, attempt robbery, and

aggravated assault all constitute serious conduct which posed a danger to the public. Indeed,

defendant’s conduct caused bodily harm to Mario, which may have been worse had the officers

not arrived when they did. Additionally, the 12-year sentence was not greatly at variance with the

spirit of the law, as it was towards the lower end of the applicable sentencing range. While

defendant argues that his past crimes might have reflected his drug abuse, his criminal history apart

from his Class X qualifying convictions demonstrated substantial recidivism. This record made it

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perfectly reasonable for a sentencing court to conclude a minimum term would be insufficient to

protect the public. See 730 ILCS 5/5-5-3.2 (West Supp. 2015).

¶ 28 Defendant maintains that it is at least arguable that the sentencing court did not

appropriately weigh his mitigating factors, but this argument ignores the standard of review in

excessive sentencing matters. The reviewing court may not reweigh the sentencing factors, and

must presume that the sentencing court considered all relevant factors unless the defendant makes

an affirmative showing from the record to the contrary. See Brown, 2018 IL App (1st) 160924,

¶¶ 8-9. A reviewing court should not substitute its judgment for that of the sentencing court merely

because it would have weighed the factors differently. Id. ¶ 8. Here, the trial court stated it

considered all relevant factors and defendant identifies nothing in the record to the contrary.

Defendant’s argument amounts to a request that the reviewing court substitute its judgment for

that of the sentencing court and reweigh the sentencing factors in defendant’s favor, and it is well-

established that a reviewing court may not do so. Id.

¶ 29 Because defendant’s underlying excessive sentence claim lacks merit, his postconviction

petition did not allege sufficient facts to demonstrate arguable prejudice from alleged ineffective

assistance of counsel on direct appeal, and his claim fails.

¶ 30 Defendant next argues that the circuit court erred by orally dismissing his petition without

issuing a written order containing its findings of fact and conclusions of law.

¶ 31 Pursuant to the Act, when the circuit court summarily dismisses a postconviction petition,

the court “shall dismiss the petition in a written order, specifying the findings of fact and

conclusions of law it made in reaching its decision” within 90 days of the petition’s filing and

docketing. 725 ILCS 5/122-2.1(a)(2) (West 2018). The Illinois Supreme Court has ruled that the

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written order provision is directory, however, and the only mandatory act the circuit court must

undertake is to enter the dismissal of record within 90 days. People v. Porter, 122 Ill. 2d 64, 81

(1988). As stated above, we review the summary dismissal of a postconviction petition de novo.

Hodges, 234 Ill. 2d at 9.

¶ 32 Here, the record shows that the circuit court entered its dismissal of record in a criminal

disposition sheet and on the docket within 90 days of the petition’s filing and docketing. Thus, the

circuit court satisfied the requirements as established by statute and the supreme court, and

defendant’s claims fails. People v. Cooper, 2015 IL App (1st) 132971, ¶ 14.

¶ 33 Defendant argues that the supreme court implicitly overruled Porter in People v. Perez,

2014 IL 115927. There, the circuit court failed to enter any dismissal of record within 90 days of

the petition’s filing and docketing, and instead filed its written dismissal order on the 91st day. Id.

¶ 1. The supreme court ruled this did not satisfy the statutory requirements. Id. The Perez court

clarified, however, that its order only concerned the question of “when did the trial court ‘enter an

order’ pursuant to the statute.” The Perez order does not discuss the written order requirement rule

as established in Porter; indeed, the Perez order does not cite, comment on, or even reference

Porter. Id. ¶ 13. Under these circumstances, we cannot say that Perez implicitly overturned Porter.

¶ 34 For these reasons, we affirm the circuit court’s summary dismissal of defendant’s

postconviction petition.

¶ 35 Affirmed.

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