People v. Bartlett

2022 IL App (2d) 200733-U

• Court: Appellate Court of Illinois
• Decided: August 16, 2022
• Docket: 2-20-0733
• Status: Unpublished

Opinion

2022 IL App (2d) 200733-U No. 2-20-0733 Order filed August 16, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) Nos. 08-CF-2133 ) 10-CF-2636 ) JUSTIN L. BARTLETT, ) Honorable ) Brendan A. Maher, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court. Justices Schostok and Brennan concurred in the judgment.

ORDER

¶1 Held: The trial court erred in its second-stage dismissal of defendant’s postconviction petition alleging ineffectiveness of plea counsel where defendant made a substantial showing that (1) counsel performed deficiently by providing the presentence investigator false information that defendant was arrested as a juvenile for a sex offense; and (2) it was reasonably probable that, but for that false information, the trial court would have imposed a lower sentence.

¶2 Defendant, Justin L. Bartlett, appeals from an order of the circuit court of Winnebago

County granting the State’s motion to dismiss his second amended petition under the Post-

Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)), which sought a new 2022 IL App (2d) 200733-U

sentencing hearing for his convictions of aggravated driving under the influence of alcohol (DUI)

(625 ILCS 5/11-501(a)(2), (d)(1)(F) (2010)), unlawful possession of a weapon by a felon (720

ILCS 5/24-1.1(a) (West 2010)), possession of firearm ammunition without a firearms owner

identification (FOID) card (430 ILCS 65/2(a)(2) (West 2010)) (all in case No. 10-CF-2636), and

aggravated battery (720 ILCS 5/12-4(b)(18) (West 2008)) (in case No. 08-CF-2133). Defendant

argues that his petition made a substantial showing of a violation of his right to effective assistance

of counsel during sentencing. We reverse and remand for further proceedings under the Act.

¶3 I. BACKGROUND

¶4 On September 4, 2008, defendant pleaded guilty in case No. 08-CF-2133 to a single count

of aggravated battery and was sentenced to a two-year term of probation. On May 24, 2010, the

State filed a petition to revoke probation, alleging that defendant committed the offense of

unlawful possession of cannabis (720 ILCS 550/4(c) (West 2008)). On August 27, 2010,

defendant was charged by information in case No. 10-CF-2636 with two counts of aggravated DUI

(625 ILCS 5/11-501(a)(1), (a)(2), (d)(1)(F) (West 2010)). That same day, the State filed a second

petition to revoke probation in case No. 08-CF-2133. This petition was based on the charges in

case No. 10-CF-2636. On September 15, 2010, a Winnebago County grand jury returned a

superseding indictment in case No. 10-CF-2636, charging defendant with (1) two counts of

aggravated DUI; (2) two counts of unlawful possession of a weapon by a felon; (3) two counts of

reckless homicide (720 ILCS 5/9-3(a) (West 2010)); and (4) one count of possession of a firearm

without a FOID card plus one count of possession of firearm ammunition without a FOID card

(430 ILCS 65/2(a)(1), (a)(2) (West 2010)).

¶5 On March 23, 2011, defendant entered his guilty plea in case No. 10-CF-2636 to charges

of aggravated DUI, unlawful possession of a weapon by a felon, and possession of firearm

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ammunition without a FOID card. In exchange for his plea, the other charges were nol-prossed,

but there was no agreement as to sentencing. Defendant also admitted to the allegations of the

second petition to revoke probation in case No. 08-CF-2133. Defendant was represented by

attorney Kunal Kulkarni.

¶6 The prosecutor recited the following factual basis for defendant’s plea in case No. 10-CF-

2636. At approximately midnight on May 26, 2010, Winnebago County sheriff’s deputies were

dispatched to the scene of an accident at the intersection of Newburg Road and South Perryville

Road. The two vehicles involved were: (1) a black Honda Civic with heavy driver’s-side damage,

driven by Christopher Krenzer; and (2) a purple Chrysler Sebring with heavy front-end damage,

driven by defendant. Krenzer died from his crash-related injuries. Witnesses estimated that the

Chrysler was traveling east on Newburg Road at over 100 miles per hour when it ran a red light at

the intersection with South Perryville Road and struck the Honda. Crash reconstruction conducted

by the Winnebago County Sheriff’s Department established that the Chrysler was traveling

between 93 and 104 miles per hour at impact. Defendant was transported to a hospital for medical

treatment. Testing performed in conjunction with defendant’s medical treatment revealed a blood

alcohol concentration of 0.159. Testing of defendant’s blood and urine by the Illinois Police Crime

Lab revealed a blood alcohol concentration of 0.115 and the presence of tetrahydrocannabinol

(THC) metabolite. A search of the Chrysler pursuant to a warrant led to the discovery of a .22-

caliber semiautomatic pistol and .22-caliber ammunition in the Chrysler’s center console.

Defendant had previously been convicted of aggravated battery in case No. 08-CF-2133.

¶7 After accepting defendant’s guilty plea and admission to the petition to revoke, the trial

court ordered the preparation of a presentence investigation report (PSI). The PSI showed that

defendant was born on January 8, 1990. While a juvenile, he .admitted to unlawful possession of

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cannabis and criminal damage to property as alleged in a delinquency petition and was placed on

probation. The State later filed a petition to revoke defendant’s probation alleging, inter alia, that

he committed the offenses of burglary, possession of stolen property, unlawful consumption of

alcohol, and unlawful possession of drug paraphernalia. He admitted the allegations, and his

probation was extended. The State later filed another petition to revoke probation alleging,

inter alia, that defendant violated an order of protection. He again admitted the allegations, and

his probation was again extended. The State once again petitioned to revoke probation, alleging

that defendant (1) failed to report to his probation officer, (2) was “beyond the control of his

parents” and broke “house rules,” (3) did not comply with the conditions of the Treatment

Alternatives to Street Crime program, and (4) admitted using THC. Defendant was ordered to

serve 10 days in the Winnebago County Juvenile Detention Center and was discharged

unsuccessfully from probation.

¶8 The PSI also reflected that, as an adult, defendant had been placed on supervision for

driving under the influence of drugs and had convictions of, inter alia, “[m]inor [d]rinking,”

violating an order of protection, and driving on a suspended license.

¶9 The PSI described defendant’s family relationships as dysfunctional and noted a family

history of criminality, substance abuse, and mental health issues. Defendant had once been

diagnosed with bipolar disorder and attention deficit hyperactivity disorder. He reported two

suicide attempts. Because of drug use and gang involvement, he dropped out of high school before

finishing ninth grade. However, he earned a GED. He suffered from alcohol and marijuana

dependence. He enrolled in several treatment programs but failed to complete them.

¶ 10 An addendum to the PSI included victim impact statements prepared by Christopher

Krenzer’s friends, his girlfriend, and members of his family. Kulkarni submitted a second

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addendum to the PSI. This consisted of information prepared by Northwest Community Hospital,

where defendant received residential care from January 24, 2007, to February 22, 2007. According

to the second addendum, defendant had been arrested at age 12 for propositioning a 9-year-old boy

to allow defendant to perform oral sex on him. According to the PSI’s second addendum,

defendant “was charged as a sexual offender[,] and was sentenced to counseling, 2 years of

probation[,] and was expelled from school. This is when he began school at East Capitol.”

¶ 11 During argument at the sentencing hearing, the following exchange occurred:

“[MS. DEHN-MILLER (ASSISTANT STATE’S ATTORNEY)]: [T]he defense

has submitted in the second addendum to the presentence report some medical records, but

also one of those records that was submitted reports that the defendant was arrested at age

twelve for propositioning another boy who was nine years old to allow the defendant to

perform oral sex on him.

MR. KULKARNI: Object.

THE COURT: Sorry?

MR. KULKARNI: What part?

MS. DEHN-MILLER: It’s in the second addendum that you submitted.

MR. KULKARNI: I didn’t see it.

THE COURT: First page under history.

MS. DEHN-MILLER: Under the records.

THE COURT: History of present illness and past history, halfway through it.

(Whereupon a discussion was had of the record.)

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MS. DEHN-MILLER: And to continue, to allow the defendant to perform oral sex.

He was charged as a sex offender and was sentenced to counseling, two years of probation,

and was expelled from school.

I think this gives the court a good insight into the fact that this defendant while

young has been involved in the criminal justice system rather extensively and is a repeat

offender.”

¶ 12 In imposing sentence, the trial court explained that it had considered the PSI and both

addenda to the PSI. The court noted defendant’s delinquency adjudication for possession of

cannabis and criminal damage to property and his admissions to revocation petitions alleging

burglary, possession of stolen property, unlawful consumption of alcohol, and unlawful possession

of drug paraphernalia. The court did not mention the sex offense noted in the PSI’s second

addendum. The court explained that defendant’s “history of criminal activity and delinquency is

certainly a huge factor in aggravation.” The court also observed that the PSI showed “pretty much

[defendant’s] utter failure at treatment” despite his “numerous treatment opportunities.”

Additionally, the court considered the seriousness of the offense, noting, in particular, the speed at

which defendant’s vehicle was traveling when it “barrel[ed] through an intersection with a red

light *** basically[ ] crushing” the victim’s vehicle. In case No. 10-CF-2636, the court sentenced

defendant to concurrent prison terms of 12 years for aggravated DUI, 8 years for unlawful

possession of a weapon by a felon, and 5 years for possession of firearm ammunition without a

FOID card. In case No. 08-CF-2133, the trial court sentenced defendant to a prison term of three

years and six months to be served consecutively to the sentences in case No. 10-CF-2636.

¶ 13 Kulkarni subsequently filed a motion to withdraw defendant’s plea, alleging that it “was

not knowingly and intelligently given” and that defendant “was not cognizant that he could [be]

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sentenced consecutively on his admission of probation violation and Aggravated DUI.” Shortly

thereafter, a new attorney, Glenn J. Jazwiec, entered an appearance for defendant. Jazwiec filed

an amended petition to withdraw defendant’s plea, alleging, inter alia, that Kulkarni led defendant

to believe that he would receive a sentence of no longer than seven years’ imprisonment. The trial

court denied the motion, and defendant appealed. Because Jazwiec had not filed a certificate under

Illinois Supreme Court Rule 604(d) (eff. July 1, 2017), we vacated the denial of the motion and

remanded for (1) the filing of a proper certificate, (2) the opportunity to file a new motion to

withdraw the guilty plea and/or reconsider the sentence, and (3) a new motion hearing. People v.

Bartlett, Nos. 2-12-1241 & 2-12-1242, cons. (Feb. 4, 2014) (minute order).

¶ 14 On remand, defense counsel filed a Rule 604(d) certificate, and defendant stood on his

original motion. The trial court recognized that possession of firearm ammunition without a FOID

card was a misdemeanor and, therefore, reduced defendant’s sentence on that conviction to 364

days’ imprisonment. In all other respects the trial court denied defendant’s motion. We affirmed

the denial. People v. Bartlett, 2015 IL App (2d) 141078-U.

¶ 15 On December 13, 2016, defendant filed a pro se petition under the Act, to which he

attached his own affidavit. Defendant averred that, when the prosecutor mentioned that defendant

was convicted of a sex crime as a juvenile, was sentenced to counseling, and was expelled from

school, he immediately told Kulkarni that everything the prosecutor said was untrue. Kulkarni

objected, and the trial court held a sidebar. After the sidebar, defendant asked Kulkarni what had

happened. Kulkarni responded that everything was “ ‘okay.’ ”

¶ 16 Defendant later retained attorney Patrick Braun to represent him. The trial court docketed

the petition for further proceedings under the Act. Braun twice amended the petition. The first

amended petition included another affidavit from defendant. Defendant averred that the PSI’s

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second addendum misreported where he lived and what school he attended. More significantly,

defendant claimed that, contrary to the PSI’s second addendum, he had never been arrested for a

sex offense and never been sentenced to probation or counseling or expelled from school based on

the commission of a sex offense. Defendant further stated that Kulkarni never reviewed the

information in the PSI’s second addendum with defendant before the sentencing hearing.

¶ 17 The second amended postconviction petition claimed that defendant received ineffective

assistance of counsel from Kulkarni in that he “allowed to be submitted inaccurate information at

the sentencing hearing that was relied upon by the court in sentencing [defendant].” The second

amended petition incorporated defendant’s previously-filed affidavits.

¶ 18 The State moved to dismiss the petition. The trial court granted the motion, and this appeal

followed.

¶ 19 II. ANALYSIS

¶ 20 We begin with a summary of the principles governing proceedings under the Act. As our

supreme court explained in People v. Hommerson, 2014 IL 115638, ¶¶ 7-8:

“The Act provides a three-stage process for adjudicating postconviction petitions.

At the first stage, the [trial] court determines whether the petition is ‘frivolous or is patently

without merit.’ [Citation.] The court makes an independent assessment as to whether the

allegations in the petition, liberally construed and taken as true, set forth a constitutional

claim for relief. [Citation.] The court considers the petition’s ‘substantive virtue’ rather

than its procedural compliance. [Citation.] If the court determines the petition is frivolous

or patently without merit, the court dismisses the petition. [Citation.] If the petition is not

dismissed, it will proceed to the second stage.

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At the second stage, the court may appoint counsel to represent an indigent

defendant, and counsel may amend the petition if necessary. [Citation.] The State may

then file a motion to dismiss the petition. [Citation.] If the State does not file a motion to

dismiss or if the court denies the State’s motion, the petition will proceed to the third stage

and the court will conduct an evidentiary hearing on the merits of the petition. [Citation.]”

¶ 21 “At [the second] stage, the [trial] court must determine whether the petition and any

accompanying documentation make a ‘substantial showing of a constitutional violation.’ ” People

v. Domagala, 2013 IL 113688, ¶ 33 (quoting People v. Edwards, 197 Ill. 2d 239, 246 (2001)).

Furthermore, “the inquiry in [a postconviction] proceeding is limited to allegations of

constitutional violations that were not and could not have been raised previously.” People v.

Vilces, 321 Ill. App. 3d 937, 940 (2001). “Rulings on issues that were raised on direct appeal are

res judicata, and issues that could have been raised, but were not, are waived.” Id. We review

de novo the second-stage dismissal of a postconviction petition. People v. Johnson, 2017 IL

120310, ¶ 14.

¶ 22 In his second amended petition, defendant argued that he received ineffective assistance of

counsel during sentencing. Ineffectiveness claims are evaluated under the two-prong test of

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984), which requires a showing that counsel’s

performance “fell below an objective standard of reasonableness” and that the deficient

performance was prejudicial in that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

¶ 23 Defendant argues that Kulkarni performed deficiently by submitting the PSI’s second

addendum, which contained false and prejudicial information that, as a juvenile, defendant

committed a sex offense against a younger child. Defendant contends that there is a reasonable

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probability that, because of Kulkarni’s deficient performance, his sentence was longer than it

otherwise would have been.

¶ 24 In its motion to dismiss the petition, the State argued that defendant waived his

ineffectiveness claim by failing to raise it on direct appeal. The trial court agreed. Defendant

insists that he did not waive his claim. It is well established that a claim is not barred by

res judicata or waiver if “facts relating to the claim do not appear on the face of the original

appellate record.” People v. Pellegrini, 2019 IL App (3d) 170827, ¶ 49. Defendant argues that

the record on direct appeal did not establish (1) the falsity of the information in the PSI’s second

addendum that defendant was arrested for a sex offense or (2) that defendant advised Kulkarni that

the information was false.

¶ 25 Special waiver principles apply here because defendant pled guilty. Rule 604(d) provides

in pertinent part:

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the

defendant, within 30 days of the date on which sentence is imposed, files in the trial court

a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea

is being challenged, a motion to withdraw the plea of guilty and vacate the judgment.

***

*** Upon appeal any issue not raised by the defendant in the motion to reconsider the

sentence or withdraw the plea of guilty and vacate the judgment shall be deemed waived.”

(Emphasis added.) Ill. S. Ct. R. 604(d) (eff. July 1, 2017).

Significantly, our supreme court has held that Rule 604(d)’s waiver rule “applies to post-

conviction proceedings as well as to appeals.” People v. Stewart, 123 Ill. 2d 368, 374 (1988).

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¶ 26 As the State argues, here the significant facts underlying the ineffectiveness claim—the

falsity of the information in the PSI’s second addendum and Kulkarni’s knowledge thereof—were

available to defendant when he filed his postplea motion. Nonetheless, we are persuaded that

Kulkarni’s alleged ineffectiveness contributed to defendant’s failure to raise the issue in his

postplea motion and that, therefore, his waiver should be excused. At sentencing, when the

prosecutor noted that the PSI’s second addendum referenced defendant’s arrest for a sex offense,

Kulkarni objected and the trial court held a sidebar. After the sidebar concluded, Kulkarni advised

defendant off the record that the situation was “ ‘okay.’ ” To be sure, when the prosecutor again

referenced the sex offense in continuing her argument, defendant perhaps should have suspected

something was amiss. Nonetheless, we agree with defendant that he “cannot be faulted for relying

on his attorney’s advice that the disclosure of the incorrect information had been resolved or be

expected to have had some independent legal knowledge with regard to his sentencing rights.”

Under these circumstances, the rule of waiver should be relaxed.

¶ 27 We next consider whether defendant’s second amended petition made a substantial

showing that Kulkarni provided ineffective assistance. Defendant argues, in essence, that Kulkarni

rendered deficient performance by submitting untrue and prejudicial information to the trial court.

Defendant contends that Kulkarni submitted the PSI’s second addendum without familiarizing

himself with its contents or verifying its accuracy. Moreover, once made aware of the inaccuracy,

he objected yet failed to obtain a ruling on his objection on the record.

¶ 28 The State makes no serious attempt to defend Kulkarni’s allegedly deficient performance,

but it argues that no prejudice resulted. Accordingly, we turn to the parties’ arguments on the

prejudice prong of the Strickland test. Defendant contends that he made a substantial showing of

prejudice, i.e., a reasonable probability that, but for counsel’s submission of false information that

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defendant committed a sex offense as a juvenile, defendant would have received a lower sentence.

Defendant notes that the State specifically argued that the sex offense was a factor in aggravation.

Defendant further argues that the trial court “put substantial weight on [defendant’s] juvenile

record, in which the inaccurate sex allegation was arguably the most serious offense.” Defendant

adds that the trial court expressly stated that it had considered the PSI’s second addendum.

According to defendant, “[n]othing in the record refutes the fact that the [trial court] seemingly

allowed the allegation [that defendant committed a sex offense as a juvenile], to remain on the

record, the State to argue it, and for it to be considered in handing down the sentence.” The State

responds that the trial court’s decision “was focused on the combination of the facts of the offenses,

and the defendant’s history in the criminal justice system, including his prior offenses, his failure

to comply with probation requirements, his failure to take advantage of treatment opportunities

and his lack of empathy.” The State notes that the trial court never specifically mentioned the sex

offense described in the PSI’s second addendum. According to the State, “defendant’s position

completely ignores the proper factors the trial court relied on in imposing [sentence].”

¶ 29 The State’s argument is unpersuasive. Although the trial court did not specifically mention

the sex offense identified in the PSI’s second addendum, it did detail defendant’s history of

juvenile delinquency as described in the original PSI. Indeed, this lends some support to the State’s

argument that the sentencing decision was unaffected by the allegedly false information in the

PSI’s second addendum. Nonetheless, the trial court did indicate that it considered the PSI’s

second addendum, and the court did not draw any distinction between the sex offense and other

PSI information. There was no on-the-record ruling on Kulkarni’s objection when the State

mentioned the sex offense. Moreover, after an off-the-record discussion following Kulkarni’s

objection, the prosecutor was permitted to proceed with her argument that the sex offense “gives

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the court a good insight into the fact that this defendant while young has been involved in the

criminal justice system rather extensively and is a repeat offender.” In imposing sentence, the trial

court found that defendant’s “history of criminal activity and delinquency is certainly a huge factor

in aggravation.” (Emphasis added.) If defendant had, indeed, committed a sex offense, it would

have been one of the more serious offenses he committed as a juvenile. Thus, while it is curious

that the trial did not mention the sex offense, we cannot comfortably conclude that it did not affect

the length of defendant’s sentence. Consequently, we agree with defendant that his petition made

a substantial showing that there is a reasonable probability that, but for Kulkarni’s allegedly

deficient performance, defendant would have received a shorter sentence. Accordingly, this case

must be remanded for a third-stage evidentiary hearing on defendant’s second amended

postconviction petition.

¶ 30 III. CONCLUSION

¶ 31 For the reasons stated, we reverse the judgment of the circuit court of Winnebago County

granting the State’s motion to dismiss defendant’s second amended postconviction petition. We

remand for further proceedings under the Act.

¶ 32 Reversed and remanded.

¶ 33

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