NOTICE FILED This order was filed under Supreme Court Rule 23 and may not be cited 2020 IL App (4th) 180120-U June 25, 2020 as precedent by any party except in Carla Bender th the limited circumstances allowed NO. 4-18-0120 4 District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee ) Circuit Court of v. ) McLean County ALEXANDER V. BEARD, ) No. 13CF1263 Defendant-Appellant. ) ) Honorable ) Robert Freitag, ) Judge Presiding.
PRESIDING JUSTICE STEIGMANN delivered the judgment of the court. Justices DeArmond and Harris concurred in the judgment.
ORDER
¶ 1 Held: The appellate court granted counsel’s motion to withdraw because no meritorious issues could be raised on appeal.
¶2 This case comes to us on the motion of the Office of the State Appellate Defender
(OSAD) to withdraw as counsel. In November 2017, defendant, Alexander V. Beard, filed a
petition for postconviction relief alleging that (1) the trial court erred by admitting the hearsay
statements of a child declarant and (2) his trial counsel rendered ineffective assistance by failing
to call witnesses and investigate defendant’s alibi defense. The trial court denied defendant’s
petition, finding his claims were barred by res judicata.
¶3 Defendant appealed, and OSAD was appointed to represent him. In August 2019,
OSAD filed a motion to withdraw. In its brief, OSAD contends that the appeal of this case is
without arguable merit. We agree, grant OSAD’s motion to withdraw as counsel, and affirm the
trial court’s judgment. ¶4 I. BACKGROUND
¶5 A. Procedural History
¶6 In September 2013, the State charged defendant with four counts of aggravated
criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2012)) and one count of predatory
criminal sexual assault (id. § 11-1.40(a)(1)). The charges stemmed from allegations made by
S.W., a minor under the age of 13, regarding four separate instances of abuse between April and
July of 2013.
¶7 B. The Jury Trial
¶8 In December 2013, the trial court conducted defendant’s jury trial. S.W. testified
at trial and described the four instances of abuse during the spring of 2013. In the first instance,
defendant was playing in a bedroom with S.W., and after another child left the room, defendant
mounted S.W. and “started rubbing his private parts on her.” Both S.W. and defendant were
clothed. S.W. also testified to a second incident in a bathroom where defendant disrobed, pulled
S.W.’s pants down, and “rubbed his private parts against hers.”
¶9 Sometime after the first two incidents, S.W. and defendant were at a park playing
basketball when defendant took S.W. to the softball field dugouts and tried to make her touch his
penis. The final incident occurred when defendant took S.W. to get soda and snacks in his van
and pulled behind a store. While both were moving items in the van, defendant began groping
S.W. and pulled both their pants down while rubbing his genitals against her.
¶ 10 S.W. eventually left to live with her father and returned to Bloomington at the end
of July. S.W. testified to a rough timeline of the events but could not remember the specific
amount of time between each incident. S.W. stated that after she returned, her older sister’s
boyfriend, Luke, began asking S.W. if defendant had ever touched her in an inappropriate place.
-2- S.W. testified that she told him defendant had touched her. Luke testified at trial that he believed
something was not right with S.W. and defendant’s relationship, so he decided to investigate
himself.
¶ 11 Defendant chose to testify at trial. He claimed that S.W. was never in the
apartment with him when he was the only adult home and that whenever she was present, at least
two other children were also present. Defendant denied ever making sexual contact with S.W.
and stated that he believed S.W. was “coerced” by Luke into accusing defendant of the abuse.
¶ 12 Following closing arguments, the jury found defendant guilty of three counts of
aggravated criminal sexual abuse and one count of predatory criminal sexual assault.
¶ 13 C. Posttrial Motions and Proceedings
¶ 14 In January 2014, defendant filed a motion for judgment notwithstanding the
verdict. Defendant argued the State failed to prove its case beyond a reasonable doubt and the
jury’s findings were against the manifest weight of the evidence. Defendant also sent a letter to
the trial judge alleging, in part, ineffective assistance of counsel. Defendant alleged certain
witnesses were “excluded” by defense counsel and that counsel failed to impeach several
witnesses with eligible prior offenses.
¶ 15 Later that month, the trial court conducted defendant’s sentencing hearing and
addressed his posttrial motion and letter alleging he received ineffective assistance of counsel.
Defendant claimed that trial counsel was ineffective for failing to call his girlfriend’s children,
other children living in the apartment, and several police officers despite his requests that
counsel do so. Defendant claimed that these witnesses would have provided additional
information regarding some of the allegations of abuse and that the officers would have helped
discredit Luke’s character. Defendant also alleged trial counsel did not discuss trial strategy with
-3- him.
¶ 16 Defense counsel testified that he did not call the child witnesses because there
was no evidence that they were “occurrence witnesses.” He also noted that he did not feel they
could have offered any helpful testimony, and further, that testimony from other witnesses
regarding Luke’s character would have been “irrelevant” and “tangential.” Trial counsel also
noted that the impeachable witnesses only had property crimes as prior offenses and that
bringing them to the jury’s attention would not cast any doubt on the fact that allegations of
improper touching were made by the witnesses.
¶ 17 Ultimately, the trial court found that defense counsel had made “sound tactical
decisions,” and thus, defendant was not entitled to the appointment of new counsel.
¶ 18 The trial court sentenced defendant to a total of 18 years in prison, 6 years in
prison on each aggravated criminal sexual abuse charge, to be served concurrently to each other
but consecutively to 12 years in prison for predatory criminal sexual abuse.
¶ 19 D. Direct Appeal
¶ 20 In February 2016, on direct appeal, this court held that (1) the evidence was
sufficient to sustain defendant’s convictions, (2) the trial court did not err by admitting hearsay
statements of the child victim, and (3) the trial court did not err by declining to appoint new
counsel after defendant claimed he received ineffective assistance of trial counsel. People v.
Beard, 2016 IL App (4th) 140286-U. Accordingly, we affirmed the trial court’s judgment. Id.
¶ 21 E. The Current Postconviction Petition and OSAD’s Motion To Withdraw
¶ 22 In November 2017, defendant filed the current petition for postconviction relief.
Defendant alleged that the trial court erred by (1) admitting the hearsay statements made by the
child victim and (2) failing to appoint new counsel after his initial trial counsel failed to
-4- investigate and call witnesses, impeach State witnesses, and establish an alibi defense. The trial
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NOTICE FILED This order was filed under Supreme Court Rule 23 and may not be cited 2020 IL App (4th) 180120-U June 25, 2020 as precedent by any party except in Carla Bender th the limited circumstances allowed NO. 4-18-0120 4 District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee ) Circuit Court of v. ) McLean County ALEXANDER V. BEARD, ) No. 13CF1263 Defendant-Appellant. ) ) Honorable ) Robert Freitag, ) Judge Presiding.
PRESIDING JUSTICE STEIGMANN delivered the judgment of the court. Justices DeArmond and Harris concurred in the judgment.
ORDER
¶ 1 Held: The appellate court granted counsel’s motion to withdraw because no meritorious issues could be raised on appeal.
¶2 This case comes to us on the motion of the Office of the State Appellate Defender
(OSAD) to withdraw as counsel. In November 2017, defendant, Alexander V. Beard, filed a
petition for postconviction relief alleging that (1) the trial court erred by admitting the hearsay
statements of a child declarant and (2) his trial counsel rendered ineffective assistance by failing
to call witnesses and investigate defendant’s alibi defense. The trial court denied defendant’s
petition, finding his claims were barred by res judicata.
¶3 Defendant appealed, and OSAD was appointed to represent him. In August 2019,
OSAD filed a motion to withdraw. In its brief, OSAD contends that the appeal of this case is
without arguable merit. We agree, grant OSAD’s motion to withdraw as counsel, and affirm the
trial court’s judgment. ¶4 I. BACKGROUND
¶5 A. Procedural History
¶6 In September 2013, the State charged defendant with four counts of aggravated
criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2012)) and one count of predatory
criminal sexual assault (id. § 11-1.40(a)(1)). The charges stemmed from allegations made by
S.W., a minor under the age of 13, regarding four separate instances of abuse between April and
July of 2013.
¶7 B. The Jury Trial
¶8 In December 2013, the trial court conducted defendant’s jury trial. S.W. testified
at trial and described the four instances of abuse during the spring of 2013. In the first instance,
defendant was playing in a bedroom with S.W., and after another child left the room, defendant
mounted S.W. and “started rubbing his private parts on her.” Both S.W. and defendant were
clothed. S.W. also testified to a second incident in a bathroom where defendant disrobed, pulled
S.W.’s pants down, and “rubbed his private parts against hers.”
¶9 Sometime after the first two incidents, S.W. and defendant were at a park playing
basketball when defendant took S.W. to the softball field dugouts and tried to make her touch his
penis. The final incident occurred when defendant took S.W. to get soda and snacks in his van
and pulled behind a store. While both were moving items in the van, defendant began groping
S.W. and pulled both their pants down while rubbing his genitals against her.
¶ 10 S.W. eventually left to live with her father and returned to Bloomington at the end
of July. S.W. testified to a rough timeline of the events but could not remember the specific
amount of time between each incident. S.W. stated that after she returned, her older sister’s
boyfriend, Luke, began asking S.W. if defendant had ever touched her in an inappropriate place.
-2- S.W. testified that she told him defendant had touched her. Luke testified at trial that he believed
something was not right with S.W. and defendant’s relationship, so he decided to investigate
himself.
¶ 11 Defendant chose to testify at trial. He claimed that S.W. was never in the
apartment with him when he was the only adult home and that whenever she was present, at least
two other children were also present. Defendant denied ever making sexual contact with S.W.
and stated that he believed S.W. was “coerced” by Luke into accusing defendant of the abuse.
¶ 12 Following closing arguments, the jury found defendant guilty of three counts of
aggravated criminal sexual abuse and one count of predatory criminal sexual assault.
¶ 13 C. Posttrial Motions and Proceedings
¶ 14 In January 2014, defendant filed a motion for judgment notwithstanding the
verdict. Defendant argued the State failed to prove its case beyond a reasonable doubt and the
jury’s findings were against the manifest weight of the evidence. Defendant also sent a letter to
the trial judge alleging, in part, ineffective assistance of counsel. Defendant alleged certain
witnesses were “excluded” by defense counsel and that counsel failed to impeach several
witnesses with eligible prior offenses.
¶ 15 Later that month, the trial court conducted defendant’s sentencing hearing and
addressed his posttrial motion and letter alleging he received ineffective assistance of counsel.
Defendant claimed that trial counsel was ineffective for failing to call his girlfriend’s children,
other children living in the apartment, and several police officers despite his requests that
counsel do so. Defendant claimed that these witnesses would have provided additional
information regarding some of the allegations of abuse and that the officers would have helped
discredit Luke’s character. Defendant also alleged trial counsel did not discuss trial strategy with
-3- him.
¶ 16 Defense counsel testified that he did not call the child witnesses because there
was no evidence that they were “occurrence witnesses.” He also noted that he did not feel they
could have offered any helpful testimony, and further, that testimony from other witnesses
regarding Luke’s character would have been “irrelevant” and “tangential.” Trial counsel also
noted that the impeachable witnesses only had property crimes as prior offenses and that
bringing them to the jury’s attention would not cast any doubt on the fact that allegations of
improper touching were made by the witnesses.
¶ 17 Ultimately, the trial court found that defense counsel had made “sound tactical
decisions,” and thus, defendant was not entitled to the appointment of new counsel.
¶ 18 The trial court sentenced defendant to a total of 18 years in prison, 6 years in
prison on each aggravated criminal sexual abuse charge, to be served concurrently to each other
but consecutively to 12 years in prison for predatory criminal sexual abuse.
¶ 19 D. Direct Appeal
¶ 20 In February 2016, on direct appeal, this court held that (1) the evidence was
sufficient to sustain defendant’s convictions, (2) the trial court did not err by admitting hearsay
statements of the child victim, and (3) the trial court did not err by declining to appoint new
counsel after defendant claimed he received ineffective assistance of trial counsel. People v.
Beard, 2016 IL App (4th) 140286-U. Accordingly, we affirmed the trial court’s judgment. Id.
¶ 21 E. The Current Postconviction Petition and OSAD’s Motion To Withdraw
¶ 22 In November 2017, defendant filed the current petition for postconviction relief.
Defendant alleged that the trial court erred by (1) admitting the hearsay statements made by the
child victim and (2) failing to appoint new counsel after his initial trial counsel failed to
-4- investigate and call witnesses, impeach State witnesses, and establish an alibi defense. The trial
court denied defendant’s petition in February 2018, finding his claims were barred by
res judicata.
¶ 23 Defendant appealed and OSAD was appointed as appellate counsel. In August
2019, OSAD filed a motion to withdraw, asserting that defendant’s claims were previously
addressed by this court on direct appeal and are therefore barred by res judicata. Defendant filed
a response to OSAD’s motion, claiming that to the extent his claims are barred by res judicata,
fundamental fairness requires the standard for his petition be relaxed. The State filed a brief
arguing the trial court’s dismissal was proper, and defendant filed a reply.
¶ 24 II. ANALYSIS
¶ 25 A. The Standard of Review and Applicable Law
¶ 26 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016))
allows individuals convicted of a criminal offense to challenge the proceedings in which they
were convicted under federal or state constitutions, or both. People v. Cathey, 2012 IL 111746,
¶ 17. A postconviction petition may be summarily dismissed within 90 days of its filing if it is
frivolous or patently without merit. Id. A petition is frivolous or patently without merit only if it
has no arguable basis either in law or in fact. People v. Hodges, 234 Ill. 2d 1, 16 (2009). To
survive dismissal at this stage the petition need only “present the gist of a constitutional claim.”
People v. Harris, 366 Ill. App. 3d 1161, 1167 (2006).
¶ 27 Postconviction proceedings are limited to issues which have not been and could
not have been previously decided. People v. Stewart, 123 Ill. 2d 368, 372 (1988). All issues
actually decided on direct appeal are barred by res judicata, and all those which could have been
presented but were not are waived. Id.
-5- ¶ 28 We review the dismissal of a postconviction petition de novo. People v. Collins,
202 Ill. 2d 59, 66 (2002).
¶ 29 B. The Trial Court Did Not Err by Dismissing Defendant’s Petition
¶ 30 In his postconviction petition, defendant alleged several issues that were already
addressed in his direct appeal. On direct appeal, defendant alleged the trial court erred by
admitting hearsay statements made by the child declarant and that the trial court erred in failing
to appoint new counsel based on defendant’s allegations of ineffective assistance of trial counsel.
Beard, 2016 IL App (4th) 140286-U, ¶ 1. Because these issues were raised in defendant’s direct
appeal, the trial court correctly determined they are barred by res judicata.
¶ 31 Defendant’s additional claim that an unnamed Department of Children and
Family Services (DCFS) caseworker was not called could have been included in a posttrial
motion or in defendant’s direct appeal and is therefore forfeited. See Stewart, 123 Ill. 2d at 372.
¶ 32 Defendant argues that fundamental fairness requires a relaxed standard for his
postconviction petition. Fundamental fairness escapes precise definition but in initial
postconviction petitions it is a principle of judicial administration, not an express requirement.
People v. Pitsonbarger, 205 Ill. 2d 444, 458 (2002). Defendant’s pro se response does nothing
but further argue claims that have already been adjudicated in his direct appeal or that could have
been raised but were not. See Stewart, 123 Ill. 2d at 372. Defendant has provided no other reason
for fundamental fairness to bar the application of res judicata.
¶ 33 III. CONCLUSION
¶ 34 OSAD’s motion to withdraw is granted, and the trial court’s judgment is affirmed.
¶ 35 Affirmed.
-6-