People v. Brock

2023 IL App (5th) 220396-U

• Court: Appellate Court of Illinois
• Decided: August 18, 2023
• Docket: 5-22-0396
• Status: Unpublished

Opinion

2023 IL App (5th) 220396-U NOTICE NOTICE Decision filed 08/18/23. The This order was filed under text of this decision may be NO. 5-22-0396 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE 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, ) St. Clair County. ) v. ) No. 19-CF-1526 ) MICHAEL BROCK, ) Honorable ) Julie K. Katz, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE BARBERIS delivered the judgment of the court. Justices Vaughan and McHaney concurred in the judgment.

ORDER

¶1 Held: The circuit court properly dismissed defendant’s postconviction petition where the claims raised therein were forfeited by defendant’s failure to raise them on direct appeal and where they were substantively meritless. As any argument to the contrary would lack merit, we grant defendant’s appointed counsel on appeal leave to withdraw and affirm the circuit court’s judgment.

¶2 Defendant, Michael Brock, appeals the circuit court’s order summarily dismissing his

postconviction petition. His appointed appellate counsel, the Office of the State Appellate

Defender (OSAD), has concluded that there is no reasonably meritorious argument that the circuit

court erred. Accordingly, it has filed a motion to withdraw as counsel along with a supporting

memorandum. See Pennsylvania v. Finley, 481 U.S. 551 (1987). OSAD has notified defendant

of its motion, and this court has provided him with ample opportunity to respond. However, he

has not done so. After considering the record on appeal and OSAD’s motion supporting brief, we

1 agree that this appeal presents no reasonably meritorious issues. Thus, we grant OSAD leave to

withdraw and affirm the circuit court’s judgment.

¶3 BACKGROUND

¶4 Defendant was charged with aggravated battery of a police officer and resisting a police

officer. The information alleged that defendant resisted being arrested by Officer Kurt

Schmulbach.

¶5 Before trial, defendant attempted to file a pro se motion to quash arrest and suppress

evidence in which he contended that his arrest was illegal and, therefore, evidence of his resistance

should be barred as “fruit of the poisonous tree.” However, defense counsel refused to argue the

motion. The State, in turn, moved in limine to bar any evidence of the legality of the arrest,

asserting that it was irrelevant. The trial court granted the State’s motion.

¶6 The State also moved to admit evidence of defendant’s three prior felony convictions as

impeachment if he testified. See People v. Montgomery, 47 Ill. 2d 510 (1971). The defense filed

a motion to exclude those convictions. In arguing the motions, defense counsel asserted that

introducing the convictions would unduly prejudice defendant given their similarity to the charges

at issue. The court granted the State’s motion. However, defendant did not testify so the

convictions were never introduced.

¶7 At trial, Schmulbach testified that he and Officer Cameron Rettig were investigating an

incident at a house in Lebanon. After speaking with two men there, Schmulbach believed that

defendant and Brandon Harris were involved. The officers went to a neighboring house to look

for defendant. Jack Brock, defendant’s father, answered the door and said that defendant was not

home. As they were leaving, they heard Jack Brock yelling at someone inside the house. They

2 returned to the house and, through an open window, Schmulbach heard defendant’s voice, which

he recognized.

¶8 Schmulbach yelled for defendant to come to the door, which he did. Schmulbach explained

that defendant was a person of interest in his investigation. At some point, Harris also came to the

door. When Schmulbach asked defendant to come to the station for questioning, defendant fled

further into the house. Schmulbach went in to pursue defendant while Rettig dealt with Harris.

According to Schmulbach, he repeatedly told defendant that he was under arrest. Schmulbach

eventually cornered defendant in the kitchen. As the two were “actively fighting,” defendant

punched Schmulbach in the nose. Defendant was finally subdued when Rettig tased him.

¶9 Jack Brock testified for the defense that he told the officers they needed a warrant to enter

the house. However, when defendant fled toward the back of the house, they came in anyway.

Jack Brock did not see defendant punch Schmulbach. The officer’s nose was bloodied when

defendant “reflexed” while being tased by Rettig.

¶ 10 The jury found defendant guilty of aggravated battery of a peace officer and resisting. The

court sentenced him to five years, six months in prison. On direct appeal, defendant’s sole

contention was that his sentence was excessive. We affirmed. People v. Brock, 2022 IL App (5th)

200179-U.

¶ 11 Defendant then filed a postconviction petition. He alleged four instances of ineffective

assistance of counsel. He alleged that counsel provided “ ‘ineffective assistance’ throughout

whole procedure of Pre-Trial, Jury Trial for defense of protection [sic].” He also alleged that

counsel was ineffective for refusing to argue his pro se motion to quash and suppress, failing to

oppose the State’s motion to introduce his prior convictions, and failing to argue that his arrest

was illegal so that evidence of his resistance should have been suppressed. He also argued briefly

3 that he was not proved guilty beyond a reasonable doubt and that the proceedings violated his

second, fourth, sixth, eighth, and fourteenth amendment rights. Defendant included his own

affidavit in which he averred that the officers lied in their testimony, specifically about defendant

punching Schmulbach.

¶ 12 The court summarily dismissed the petition. The court noted that all of defendant’s claims

could have been raised on direct appeal but were not. Defendant timely appealed.

¶ 13 ANALYSIS

¶ 14 OSAD concludes that it can make no reasonably meritorious argument that the court erred

by summarily dismissing the petition. OSAD first observes, as the court did, that all defendant’s

claims could have been raised on direct appeal. Issues in a postconviction petition that were

decided on direct appeal are barred by res judicata (People v. Pitsonbarger, 205 Ill. 2d 444, 458

(2002)), and issues that could have been raised earlier, but were not, are forfeited (People v. Blair,

215 Ill. 2d 427, 443-44 (2005)). OSAD further notes that defendant did not claim that counsel on

direct appeal was ineffective for failing to raise the issues there and that it may not raise such

claims for the first time on appeal.

¶ 15 Claims not raised in a postconviction petition may not be raised for the first time on appeal

from the dismissal of that petition. People v. Jones, 213 Ill. 2d 498, 507 (2004). This applies to a

claim of ineffective assistance of appellate counsel even though such a claim is inferable from the

mere inclusion of previously unargued claims in the petition. People v. Cole, 2012 IL App (1st)

102499, ¶ 16. Thus, defendant’s claims are forfeited.

¶ 16 In any event, we agree with OSAD that those claims lack merit. The Post-Conviction

Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)) provides a mechanism by which a

criminal defendant may assert that his conviction resulted from a substantial denial of his

4 constitutional rights. Id. § 122-1(a); People v. Delton, 227 Ill. 2d 247, 253 (2008). The Act

provides a three-stage process to adjudicate petitions in noncapital cases. People v. Boclair, 202

Ill. 2d 89, 99 (2002). At the first stage, the court independently assesses a defendant’s petition

within 90 days of its filing, and if the court determines that the petition is “frivolous” or “patently

without merit,” the court can summarily dismiss it. 725 ILCS 5/122-2.1(a)(2) (West 2020).

¶ 17 Most of the claims in defendant’s petition asserted that counsel was ineffective. “ ‘To

establish that a defendant was deprived of effective assistance of counsel, a defendant must

establish both that his attorney’s performance was deficient and that the defendant suffered

prejudice as a result.’ ” People v. Manning, 227 Ill. 2d 403, 412 (2008) (quoting People v. Pugh,

157 Ill. 2d 1, 14 (1993)).

¶ 18 Defendant first contended that trial counsel was generally ineffective throughout the

proceedings. However, as OSAD points out, he included no allegations of ineffective

representation beyond the three specific claims that followed. This allegation appears to be merely

a sort of introduction to those specific claims, and we will not discuss it separately. See People v.

Coleman, 183 Ill. 2d 366, 381 (1998) (nonfactual and nonspecific assertions that are no more than

conclusions do not require further proceedings).

¶ 19 Defendant’s second specific allegation of ineffective assistance—that counsel failed to

oppose the State’s motion to use defendant’s prior convictions—is easily answered. The record

shows that counsel did oppose the State’s motion both orally and in writing. Moreover, defendant

cannot establish prejudice because he did not testify. See People v. Patrick, 233 Ill. 2d 62, 77-78

(2009) (any possible harm flowing from the trial court’s denial of a motion in limine to bar

impeachment by a prior conviction is speculative absent defendant’s testimony and prosecution’s

attempt to impeach via those prior convictions).

5 ¶ 20 Defendant’s remaining contentions all appear to proceed from the same flawed premise:

that the alleged illegality of the arrest excused his forcible resistance. It did not. A person may

not resist an arrest, even an unlawful one. And no one may batter a police officer in response to

the officer’s unlawful actions.

¶ 21 Defendant was convicted of aggravated battery to a peace officer and resisting a peace

officer. The latter statute provides:

“A person who knowingly resists or obstructs the performance by one known to the person

to be a peace officer *** of any authorized act within his or her official capacity commits

a Class A misdemeanor.” 720 ILCS 5/31-1(a) (West 2020).

¶ 22 Because the statute criminalizes resistance only to “authorized” acts, the rule has developed

that acts that are not constitutionally permissible are not “authorized” and may to a certain extent

be resisted. Thus, an “officer’s warrantless, nonconsensual, and forcible entry into a person’s

residence in violation of the fourth amendment will not be considered an ‘authorized act.’ ” City

of Champaign v. Torres, 214 Ill. 2d 234, 243 (2005).

¶ 23 However, section 31-1 must be read in conjunction with section 7-7 of the Criminal Code

of 2012, which provides:

“A person is not authorized to use force to resist an arrest which he knows is being made

*** by a peace officer ***, even if he believes that the arrest is unlawful and the arrest in

fact is unlawful.” 720 ILCS 5/7-7 (West 2020).

¶ 24 “It appears that the legislature, by adopting section 7-7, intended that the making of an

unlawful arrest is to be considered an ‘authorized act’ for purposes of section 31-1.” People v.

Locken, 59 Ill. 2d 459, 464-65 (1974). This case is similar to Locken, where the defendant was

convicted of resisting after he attempted to prevent an officer from arresting a third party in the

6 defendant’s home. Id. Defendant’s conviction was affirmed despite his argument that the officer

lacked authority to enter his home without a warrant or probable cause. Thus, defendant’s

conviction of resisting was proper regardless of whether his arrest was constitutionally permissible.

¶ 25 Defendant’s argument with regard to his aggravated battery conviction is even weaker.

The relevant portion of the aggravated battery statute provides:

“A person commits aggravated battery when, in committing a battery, other than by

discharge of a firearm, he or she knows the individual battered to be *** [a] peace officer

*** performing his or her official duties[.]” 720 ILCS 5/12-3.05(d)(4)(i) (West 2020).

¶ 26 The statute requires only that the officer be performing “official duties,” rather than an

“authorized act,” as required by the resisting statute. This leads to the conclusion that the “official

duties” need not be constitutionally permissible. As this court recently stated:

“We do not believe that, by using the term ‘official duties’ in defining the offenses

at issue, the legislature intended for the State to prove that every aspect of a peace officer’s

conduct fully complied with fourth amendment jurisprudence. Instead, we hold that, for

purposes of the charges at issue here (aggravated battery with a firearm involving a peace

officer, aggravated discharge of a firearm against a peace officer, and aggravated fleeing

or attempting to elude a peace officer), the constitutionality of the [officers’ actions] is not

relevant in determining whether the officers were executing their official duties. Instead,

a peace officer is executing his ‘official duties’ when acting in the good faith performance

of his job-related duties regardless of whether those actions are later determined to be

constitutionally unreasonable.” People v. McIntosh, 2020 IL App (5th) 170068, ¶ 57.

See also Torres, 214 Ill. 2d at 252-53 (Freeman, J., joined by Karmeier, J., dissenting) (under the

aggravated battery statute, an officer need not be engaged in an “authorized act,” but only “official

7 duties”); People v. Jones, 2015 IL App (2d) 130387, ¶ 19 (defendant’s argument that the officer’s

act was unauthorized did not apply to his conviction for aggravated battery, which required only

that the officer be performing his official duties).

¶ 27 Here, Schmulbach testified that he was in the process of arresting defendant, and had said

so repeatedly, when defendant punched him. As defendant was convicted of aggravated battery

and was resisting an arrest, it simply did not matter whether the arrest was lawful.

¶ 28 Defendant’s related contention that evidence of his punching the officer should have been

suppressed as the “fruit” of an illegal arrest has been rejected. In People v. Villarreal, 152 Ill. 2d

368 (1992), the court noted that the “fruit of the poisonous tree” doctrine requires the exclusion of

evidence of past or contemporaneous crimes obtained through unlawful police conduct, the

purpose being to discourage such conduct by making evidence obtained thereby worthless.

However, the court firmly rejected the invitation to apply the rule to the defendant’s actions in

resisting that conduct, stating:

“We and other courts, through whose decisions the rule of exclusion has evolved, have not

contemplated that one who commits an unlawful homicide, assault, or other offense in

reaction to an illegal search would be entitled to suppress the evidence of his deed. To

countenance, through the use of the exclusionary rule, what can be regarded as an unlawful

species of self-help would be to encourage unlawful and retaliatory conduct.” (Internal

quotation marks omitted.) Id. at 378-79.

¶ 29 Defendant’s reasonable doubt argument also seems to proceed from the premise that the

allegedly unlawful nature of the arrest excused his conduct. In his petition and accompanying

affidavit, defendant asserted that there was no evidence of how he became a “person of interest”

in Schmulbach’s investigation, that the witness who allegedly implicated him did not testify and

8 was unavailable to the defense, and that there was no evidence that Schmulbach had a warrant for

defendant’s arrest. Of course, the court’s ruling on the State’s motion in limine, which defendant

does not contend was erroneous, barred such evidence because, as we have shown, it was

irrelevant. Defendant was not privileged to resist the arrest even if it had been illegal.

¶ 30 When a defendant challenges on appeal the sufficiency of the evidence, “the relevant

question is whether, after viewing the evidence in the light most favorable to the State, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

People v. Hagberg, 192 Ill. 2d 29, 33-34 (2000). As noted, Schmulbach testified that he was

engaged in arresting defendant when defendant punched him in the nose. This was sufficient to

prove that defendant battered Schmulbach while he was engaged in his official duties and that

defendant resisted an authorized act.

¶ 31 In his affidavit attached to the petition, defendant averred that he did not punch

Schmulbach. But defendant may not use his affidavit—which is not subject to cross-

examination—to dispute the trial evidence long after the fact. The trial court told defendant that

he had the right to testify but he declined. The evidence that was presented was sufficient to prove

his guilt.

¶ 32 A postconviction petitioner may advance a claim based on newly discovered evidence.

People v. Ortiz, 235 Ill. 2d 319, 333 (2009). However, defendant’s affidavit, which merely

recounted his version of the underlying incident, and which largely mirrored his father’s testimony

at trial, was clearly not newly discovered. See id. at 334 (“newly discovered evidence” is defined

as that which has been discovered since trial and could not have been discovered sooner through

due diligence).

9 ¶ 33 Finally, we agree with OSAD that defendant’s omnibus argument that the proceedings

violated various of his constitutional rights fails for lack of specificity. Apart from the specific

allegations already discussed, defendant provides no specific examples of how his second, fourth,

sixth, eighth, and fourteenth amendment rights were violated. See Coleman, 183 Ill. 2d at 381

(nonfactual and nonspecific assertions that are no more than conclusions do not require a hearing).

¶ 34 CONCLUSION

¶ 35 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and

affirm the circuit court’s judgment.

¶ 36 Motion granted; judgment affirmed.