No. 3--05--0886 (Consolidated with No. 3--06--0287) _________________________________________________________________ Filed April 8, 2008 IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) v. ) No. 01--CF--125 ) WILLIE LEE COLEMAN, ) Honorable ) James E. Shadid, Defendant-Appellant. ) Judge, Presiding. _________________________________________________________________
JUSTICE HOLDRIDGE delivered the Opinion of the court: _________________________________________________________________
In 2001, the defendant, Willie Lee Coleman, was convicted of
two counts of possession with the intent to deliver a controlled
substance (720 ILCS 570/401(a)(1)(A), (d) (West 2000)). He was
sentenced to concurrent terms of 36 and 7 years' imprisonment,
court costs, and a drug assessment of $3,500. On direct appeal,
this court affirmed the defendant's conviction and sentence.
People v. Coleman, No. 3--01--0539 (2003) (unpublished order
under Supreme Court Rule 23). In 2002, the defendant filed a
petition for postjudgment relief (postjudgment petition) (735
ILCS 5/2--1401 (West 2002)), and in 2003 the defendant filed a
first petition for postconviction relief (first postconviction petition) pursuant to the Illinois Post-Conviction Hearing Act
(Act) (725 ILCS 5/122--1 et seq. (West 2002)). Both petitions
were dismissed by the circuit court, and the defendant appealed.
This court affirmed the dismissal of the postconviction petition
but reversed the dismissal of the postjudgment petition and
remanded the latter for further proceedings. People v. Coleman,
358 Ill. App. 3d 1063, 835 N.E.2d 387 (2005). On remand, the
circuit court dismissed the defendant's postjudgment petition.
The defendant appealed that dismissal to this court, and that
appeal was docketed as case No. 3--06--0287. In the meantime,
the defendant had sought leave to file a successive petition for
postconviction relief (successive postconviction petition). The
circuit court denied leave to do so. The defendant appealed that
ruling, and this court docketed that appeal as case No. 3--05--
0886. For purposes of the instant appeal, case Nos. 3--05--0886
and 3--06--0287 have been consolidated. We affirm.
FACTS
I. Trial
On February 1, 2001, the Peoria police executed a search
warrant at 1507 W. Butler, which was a known drug house. In
addition to the search warrant, the police had an arrest warrant
for Otis Ross, whom the police believed to be residing at 1507 W.
Butler.
2 To execute the search warrant, an undercover officer went to
the back door of the home and posed as a drug buyer. The officer
testified that he knocked on the back door, and the defendant
answered it. The officer said that he wanted to purchase "two
bags." The defendant went back into the house and then returned
to the back door and opened it. At that point, two police
officers rushed the defendant and knocked him to the ground.
Meanwhile, several other police officers attempted to enter
through the front door. They were unsuccessful and ultimately
entered through the back door.
In the living and dining area of the house, the police found
111 small packages of heroin. They also found a 38-gram rock of
cocaine as well as several individual baggies of cocaine. It
appeared that someone had been breaking the rock into smaller
individual portions of cocaine. The police also discovered that
the front door had been wedged shut with a shovel.
The defendant testified that his cousin lived in the house.
He told the police that he did not live in the house and he was
only visiting. However, one of the officers testified that the
defendant told him he had been staying in the house since
Thanksgiving.
The police searched the unattached garage and found a car.
In the glove compartment, they found an application for natural
gas service addressed to William L. Coleman at 1507 W. Butler.
3 The defendant testified that the application belonged to his
cousin, William Lawrence Coleman, who was known as "Larry." He
asserted that his cousin had left the application in the glove
compartment a few days earlier when the defendant had assisted
his cousin in moving into the house on Butler.
The police also found a key to the back door and a key to a
padlock on an upstairs room door on the defendant’s key ring.
The defendant testified that he came to Peoria with a
friend, Vratraun Robinson, and intended to visit his girlfriend.
They stopped in Dwight and purchased milk and donuts. As they
neared Peoria, the defendant began to have stomach problems and
needed to stop. He decided to stop at his cousin’s house because
it was closer than his girlfriend’s. He called his cousin from a
cellular phone to see if he was home. His cousin told him to
stop by and requested that he park in the garage.
The defendant and Robinson arrived around 9 p.m. They
entered his cousin’s home through the front door. The defendant
went upstairs immediately to use the washroom. He heard voices
and thought that there were people besides his cousin and his
friend in the house. His friend used the cellular phone, which
his cousin then brought upstairs to the defendant. The defendant
called his girlfriend. While he was on the phone with her, he
heard knocking at the door. He went downstairs and realized he
was the only person in the house. When he answered the back
4 door, the police ran in and threw him to the ground. He said he
did not know there were drugs in the house until the police took
him into the living room in handcuffs.
Robinson testified on the defendant's behalf. He and the
defendant were en route to Peoria from Chicago when they stopped
to eat. As they neared Peoria, the defendant had to use the
bathroom. They decided to stop at 1507 W. Butler, the home of
the defendant's cousin Larry, and arrived around 9 p.m. The
defendant parked his car in the garage, and then Robinson, the
defendant, and the defendant's cousin entered the residence
through the front door. Although the defendant had made an
emergency stop to use the bathroom, the defendant first spoke
with his cousin for about five minutes. Robinson only saw the
defendant's cousin, but he heard others speaking in the home.
Robinson then used the defendant's phone to make a call.
Robinson called a girl he knew and requested that she pick him
up, and then the defendant went upstairs while using the phone.
Robinson waited outside for 10 minutes for his ride to arrive and
did not see anyone leave or enter the residence during this time.
Robinson left and returned to 1507 W. Butler 20 to 30 minutes
later. By this time, the police were at the premises and had
executed the search warrant. Robinson knocked on the front door
and was told to go to the back. He did and was immediately
cuffed. At this time, it was 9:22 p.m. Robinson was taken to
5 jail on an outstanding traffic warrant and released later that
night.
The jury convicted the defendant of two counts of possession
with the intent to distribute a controlled substance. The judge
sentenced the defendant as described above. The defendant
appealed.
II. Direct Appeal
On appeal, the defendant argued that (1) he was improperly
indicted without a preliminary hearing, (2) his counsel was
ineffective, (3) the trial judge should have recused himself
because he had previously represented the defendant, (4) he was
not proven guilty beyond a reasonable doubt, (5) his due process
rights were denied when his crime was enhanced from a Class 1 to
a Class X felony, and (6) he was entitled to a $5 per day credit
for time served in pretrial custody. This court granted the
credit against the defendant's fine, but otherwise affirmed.
under Supreme Court Rule 23). In response to the defendant's
argument that he was not proven guilty beyond a reasonable doubt,
we held, "[g]iven the strong evidence of the defendant's guilt
and the utter implausibility of the defendant's testimony, we
cannot say that the jury's finding was unreasonable."
III. Other Collateral Filings
6 The defendant first filed a pro se postjudgment petition in
September 2002. 735 ILCS 5/2--1401 (West 2002). In this
petition, the defendant challenged his arrest and the search and
seizure of evidence from the home on 1507 W. Butler. The
defendant also asserted that a Peoria police officer gave false
testimony to the grand jury and that the State failed to weigh
each package of contraband.
In March 2003, the defendant, pro se, filed a first
postconviction petition. 725 ILCS 5/122--1 et seq. (West 2002).
This petition asserted that the Peoria police officer who wrote
the affidavit in support of the search warrant invented the
confidential informant. The defendant also argued that trial
counsel was ineffective for failing to challenge the affidavit.
On motion of the State, the trial court dismissed the
defendant's postjudgment petition, finding the defendant's claims
were res judicata. The circuit court also summarily dismissed
the defendant's first postconviction petition as frivolous and
patently without merit, on the basis that the defendant waived
the issues presented since they were not pursued on direct
appeal. The defendant appealed the dismissal of both the
petition for relief from judgment and petition for postconviction
relief. This court affirmed the dismissal of the defendant's
first postconviction petition, but reversed the dismissal of the
7 postjudgment petition and remanded it for further proceedings.
Coleman, 358 Ill. App. 3d 1063, 835 N.E.2d 387.
Before the circuit court ruled on the defendant's
postjudgment petition, the defendant was allowed to supplement
this petition. The defendant filed a petition to amend his
previous postjudgment petition. He now asserted that (1) he was
a guest in the home at 1507 W. Butler and therefore should never
have been charged, (2) Otis Ross had never been in the home at
1507 W. Butler, and (3) the police used the warrant as a pretext
for entering the residence. The trial court denied the
postjudgment petition on res judicata grounds, concluding that
the issues could have been raised on direct appeal. The
defendant appealed, and this court docketed the case as No. 3--
06--0287.
IV. Successive Post-Conviction Petition
In the meantime, on October 25, 2005, the defendant filed a
successive postconviction petition claiming actual innocence
based on newly discovered evidence. 725 ILCS 5/122--1 et seq.
(West 2004). In this petition, the defendant asserted that (1)
the search warrant for 1507 W. Butler was based on false
information, (2) the police failed to use proper surveillance
before executing the search warrant, thus allowing time for some
to escape while leaving an innocent person alone in the home, and
(3) the warrant was for the wrong person's home because while
8 "everyone had a[n] idea drugs [were] inside the house, the Peoria
Police [were] clueless to who sold drugs from" this location.
Attached to the petition were affidavits from Otis Ross, Richard
Welch and Keith Mitchell. The defendant asserted that these
individuals were not called to testify at trial and supported his
claim of actual innocence.
Ross averred that he did not sell drugs from 1507 W. Butler
and that he never lived at the residence, nor had he been a
"repeated visitor" to this location. However, Ross also stated
that he was "no stranger" to 1507 W. Butler because in 2000, he
would visit a female friend who lived at the address.
Welch and the defendant met while they were incarcerated in
the Peoria County jail and conferred about the defendant's
instant arrest when they met again at the Illinois River
Correctional Center. Welch averred that he was familiar with the
activity that took place at 1507 W. Butler and had never seen
Ross at that residence, nor had he seen the defendant at that
residence or on that block. Welch also stated that the home was
used only to package drugs, not to sell them. Welch then averred
that an individual named Jarod Carpenter told him that others
were packaging drugs on February 1, 2001, and the defendant had
arrived shortly before the Peoria police executed the search
warrant. He then stated that Carpenter told him that
"[Carpenter] and his friends manage[d] to escape out the back
9 door just in the nick of time right before the police arrived
they ran next door and watched [the defendant] get arrested." He
also averred that he had a conversation with a Peoria police
officer, who told him that the police knowingly used the name of
an old informant on the warrant.
Keith Mitchell stated he is the defendant's cousin. He
averred that he was at the 1507 W. Butler residence on February
1, 2001, with Carpenter and his friends. Prior to the
defendant's arrival, Mitchell heard Carpenter speaking with the
defendant via telephone, and Carpenter told the defendant to park
his car in back. Mitchell averred that Carpenter told him that
the defendant was on his way to 1507 W. Butler to use the
washroom, but then stated that the defendant did not arrive until
a few hours later. After the defendant arrived at the residence
with his friend, they entered through the front door. The
defendant spoke to Carpenter and proceeded to the bathroom.
Then, "for some odd reason," Carpenter knew the Peoria police
were planning to execute a search warrant in the near future, so
Mitchell yelled to the defendant to vacate the residence, but the
defendant could not hear this warning.
Mitchell and all of the individuals in the home, with the
exception of the defendant, were able to vacate the residence
unnoticed and take shelter in a home next door. The police then
arrived, executed the warrant and arrested the defendant and
10 Robinson. Finally, Mitchell stated that he spoke with the
defendant's trial attorney and offered to testify on the
defendant's behalf. The defendant's attorney warned Mitchell
that he may be arrested if he appeared and later told Mitchell
that he would not be needed to testify.
The circuit court denied the defendant leave to file the
successive postconviction petition. In doing so, the court
stated that the defendant alleged "newly discovered evidence but
challenges the sufficiency of the search warrant." The court
then stated that a challenge to the search warrant was not
brought at trial or on direct appeal and was therefore waived.
The court also cited the order dismissing the defendant's first
postconviction petition, which stated that as a casual guest
there was a question of whether the defendant had standing to
challenge the sufficiency of the warrant. The court concluded
that the issues could have been, and were, raised in the first
postconviction petition. Further, the court held that
fundamental fairness did not require the filing of the
defendant's instant successive postconviction petition. The
defendant appealed, and this court docketed the case as No. 3--
05--0886. Case Nos. 3--06--0287 and 3--05--0886 were
consolidated for purposes of appeal.
ANALYSIS
11 On appeal, the defendant argues that his successive
postconviction petition successfully advanced a claim of actual
innocence and was supported by affidavits of witnesses who were
not available at trial. The defendant asserts that "what was
missing from his case was testimony from people who were inside
the house when he first got there," and is supplied in his
petition and the attached affidavits. We disagree.
Under the Act, any person imprisoned in a penitentiary may
file a petition for postconviction relief if the individual
asserts there was a substantial denial of his constitutional
rights at trial. 725 ILCS 5/122--1(a) (West 2004). In a
noncapital case, the Act provides a three-stage process for
adjudicating postconviction petitions. At the first stage, a
judge may summarily dismiss a petition if it is found frivolous
or patently without merit. 725 ILCS 5/122--2.1(a)(2) (West
2004). A petition is considered frivolous or patently without
merit if the petitioner’s allegations, taken as true, fail to
state the gist of a constitutional claim. People v. Collins, 202
Ill. 2d 59, 782 N.E.2d 195 (2002). The petitioner need only
present a limited amount of detail to meet this standard. People
v. Kellerman, 342 Ill. App. 3d 1019, 804 N.E.2d 1067 (2003).
While all well pled allegations are liberally construed and
normally taken to be true, they will not be so considered if
contradicted by the record. People v. Coleman, 183 Ill. 2d 366,
12 701 N.E.2d 1063 (1998). We review de novo the first-stage
dismissal of a postconviction petition. Kellerman, 342 Ill. App.
3d 1019, 804 N.E.2d 1067.
The Act contemplates the filing of only one postconviction
petition. People v. Flores, 153 Ill. 2d 264, 606 N.E.2d 1078
(1992). Claims raised in an original postconviction petition and
decided by the circuit court or on direct review have res
judicata effect. People v. Thompson, 331 Ill. App. 3d 948, 773
N.E.2d 15 (2002). Claims that could have been raised in the
earlier petition and on review, but were not, are deemed waived.
Thompson, 331 Ill. App. 3d 948, 773 N.E.2d 15. Regarding a
successive postconviction petition, the procedural bar of waiver
is not merely a rule of judicial administration. Rather, it is
an express statutory requirement under the Act. See 725 ILCS
5/122--3 (West 2004); see also People v. Pitsonbarger, 205 Ill.
2d 444, 793 N.E.2d 609 (2002).
The procedural bars do not, however, preclude a successive
postconviction petition when the defendant establishes that the
proceedings on his initial postconviction petition were
fundamentally deficient. Flores, 153 Ill. 2d 264, 606 N.E.2d
1078. To show such a deficiency, the defendant must demonstrate
"cause and prejudice." Pitsonbarger, 205 Ill. 2d 444, 793 N.E.2d
609. In the event a petitioner cannot meet the cause and
prejudice test, the failure to bring a claim in a prior
13 postconviction petition will be excused only "if necessary to
prevent a fundamental miscarriage of justice." People v.
Washington, 348 Ill. App. 3d 231, 237, 809 N.E.2d 239, 243
(2004). In a noncapital case, the petitioner must show actual
innocence in order to establish such a miscarriage of justice.
Pitsonbarger, 205 Ill. 2d 444, 793 N.E.2d 609.
Here, the defendant alleges actual innocence based on newly
discovered evidence. In order to obtain relief under this
theory, the "defendant must show that the evidence he is relying
on (1) is of such conclusive character that it will probably
change the result on retrial; (2) is material to the issue, not
merely cumulative; and (3) was discovered since trial and is of
such character that the defendant in the exercise of due
diligence could not have discovered it earlier." People v.
Anderson, 375 Ill. App. 3d 990, 1006, 874 N.E.2d 277, 292 (2007).
Evidence is not newly discovered if "it presents facts
already known to the defendant at or prior to trial, though the
source of those facts may have been unknown, unavailable, or
uncooperative." People v. Barnslater, 373 Ill. App. 3d 512, 523,
869 N.E.2d 293, 303 (2007). Further, an "allegation of newly
discovered evidence of innocence is not intended to question the
strength of the State's case. An allegation of newly discovered
evidence of innocence seeks to establish the defendant's actual
innocence of the crimes for which he has been tried and
14 convicted." People v. Washington, 171 Ill. 2d 475, 495, 665
N.E.2d 1330, 1339 (1996) (McMorrow, J., specially concurring);
see also People v. Manrique, 351 Ill. App. 3d 277, 280, 813
N.E.2d 1095, 1098 (2004) (this court found a defendant had
sufficiently stated the gist of a constitutional claim in a
successive postconviction petition because the evidence
supporting actual innocence was "potentially exculpatory");
Barnslater, 373 Ill. App. 3d at 520, 869 N.E.2d at 300, (court
held "actual innocence" means total vindication or exoneration
and does not concern whether a defendant has been proven guilty
beyond a reasonable doubt).
In this case, the defendant's successive petition for
postconviction relief and the supporting affidavits fail to
establish his actual innocence.
First, we agree with the State's contention that the
affidavit of Ross, averring that he was neither a resident nor a
"repeated visitor" to the home at 1507 W. Butler, challenges only
the sufficiency of the search warrant. Therefore, it does not
assist in showing the defendant is actually innocent of the crime
of which he was convicted. Welch's affidavit also raises a
challenge to the sufficiency of the search warrant. Welch
averred that he lives on West Butler, he has never heard of Ross,
and that an informant could not have purchased drugs at the
residence because that residence was only used to store and
15 package drugs. These assertions do not establish that the
defendant is actually innocent of the crimes for which he was
convicted, but only challenge the sufficiency of the search
warrant and the underlying affidavit. We agree with the circuit
court that this challenge was waived and fundamental fairness
does not require the filing of a successive postconviction
petition on this claim alone.
Next, the defendant has not established his actual innocence
based on newly discovered evidence. The affidavits of Welch and
Mitchell do not offer such conclusive evidence that the result at
trial would change. Additionally, the affidavits of Welch and
Mitchell do not present new evidence. Rather, they present
evidence that is cumulative to the defendant and Robertson's
testimony at trial.
In relevant part, Welch averred that Carpenter told him that
Carpenter and his friends managed to flee the residence
immediately before the police arrived, leaving the defendant
alone in the residence, and that the defendant had just arrived
at the residence. First, Welch's purported testimony does not
add anything exculpatory or different to the facts adduced at
trial. It merely reiterates the testimony that was offered by
the defendant and Robinson at trial and rejected by the jury.
Also, Welch's purported testimony does not fill the void the
defendant alleged was left at trial, specifically that "what was
16 missing from his case was testimony from people who were inside
the house when he first got there," because Welch does not claim
to have been at the residence on February 1, 2001. Rather, his
knowledge is based on the hearsay statements of Carpenter.
Mitchell's affidavit also offers testimony that was
cumulative to the testimony offered by the defendant and Robinson
at trial and rejected by the jury. Furthermore, portions of
Mitchell's purported testimony conflicts with the evidence
adduced at trial. The defendant testified that en route, he
phoned and spoke with his cousin, "Willie Lawrence Coleman." The
defendant said that he requested to use the washroom, and his
cousin agreed and told him to park his car in the garage.
However, Mitchell averred that the defendant phoned Carpenter,
whom he heard tell the defendant to park his car in the back. In
addition, the defendant was found alone in the home by the
police, who also had the residence under surveillance that day,
while Mitchell averred that there were a number of friends in the
home immediately before the police executed the search warrant
who managed to escape the home unnoticed prior to the entry by
the police.
Finally, it is clear that the evidence offered by Mitchell
is not "newly discovered." Mitchell admitted that he offered to
testify at the defendant's trial but was told by the defendant's
attorney that his testimony would not be needed. Thus, not only
17 was Mitchell not "unknown, unavailable, or uncooperative," (see
Barnslater, 373 Ill. App. 3d at 523, 869 N.E.2d at 303) he was
known, available, and offered to cooperate. Additionally, the
defendant has not established that in the exercise of due
diligence, Welch could not have been located earlier. In his
affidavit, Welch stated that he and his family lived on West
Butler. He also averred that he knew that drug activity occurred
at 1507 W. Butler, and also knew who conducted the activity. The
defendant was found inside 1507 W. Butler and also stated that
his cousin lived there. Therefore, it cannot be said that in the
exercise of due diligence, Welch could not have been found by the
defendant to offer his testimony on his behalf at trial.
As a result, the defendant has not sufficiently established
a claim that he was actually innocent of the crimes for which has
was tried and convicted. The circuit court properly denied the
defendant leave to file his successive postconviction petition.
CONCLUSION
The judgment of the circuit court of Peoria County is
affirmed.
Affirmed
MCDADE, P. J., and SCHMIDT, J., concur.