People v. Foremin

2020 IL App (1st) 190211-U

• Court: Appellate Court of Illinois
• Decided: December 22, 2020
• Docket: 1-19-0211
• Status: Unpublished

Opinion

2020 IL App (1st) 190211-U

No. 1-19-0211

Order filed December 22, 2020.

Second Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party 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. 06 CR 16086 ) ROMAN FOREMIN, ) The Honorable ) Brian K. Flaherty, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE LAVIN delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment.

ORDER

¶1 Held: Postconviction counsel did not provide unreasonable assistance. This court affirmed the judgment of the circuit court and affirmed the second-stage dismissal of defendant’s postconviction petition.

¶2 Defendant Roman Foremin pleaded guilty to attempted murder in exchange for a 31-year

prison sentence. Defendant now appeals from the second-stage dismissal of his petition filed

under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)). He contends

postconviction counsel provided unreasonable assistance in violation of Supreme Court Rule No. 1-19-0211

651(c) (eff. July 1, 2017) by arguing unpled issues and then failing to amend his pro se petition.

We affirm.

¶3 BACKGROUND

¶4 On June 14, 2006, during midday, defendant and his codefendant Romarr Gipson walked

up to two people sitting in a vehicle and shot them. Defendant fled the scene and dropped the

gun, but a police officer who recognized him from a prior arrest apprehended him. The gun

matched shell casings recovered from the scene. Defendant was arrested and then charged with

multiple counts of attempted first degree murder, aggravated battery with a firearm, and

aggravated discharge of a firearm.

¶5 On May 9, 2014, defendant nevertheless pleaded guilty to only one count of attempted

murder in exchange for a 31-year prison sentence and dismissal of the remaining charges. At the

plea hearing, the trial court first admonished defendant of the charges against him, his right to a

jury trial, the potential immigration consequences, the minimum and maximum sentence he

faced (31 years to life), and his mandatory supervised release term. Defendant signed and

acknowledged a written waiver of his right to a jury, and the State presented the factual basis for

the plea, which is delineated above. The State added there would have been testimony from the

emergency room doctor that due to the gunshot wound, one victim was required to have his

kidney removed, and later, a kidney transplant. Defendant stipulated to the facts, and the trial

court found defendant’s guilty plea freely and voluntarily given. The parties waived the

presentence investigation (PSI) report, and the court then sentenced defendant to the agreed term

based in part on defendant’s lack of criminal history. Defendant had 2,642 days of presentence

custody credit.

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¶6 Some two years later, defendant filed a motion to correct the mittimus and sentencing

credit arguing that the trial court failed to state “what percentage” of his sentence had to be

served. He believed he was required to serve 50%. The motion was granted but only insofar as

the court corrected the mittimus to reflect a Class X sentence (it previously had stated it was

Class M).

¶7 Defendant subsequently filed the present pro se postconviction petition, wherein he

alleged a denial of due process because, at his guilty plea hearing, the trial court did not inform

defendant that he would have to serve 85% of his sentence (also known as good time conduct

credit). See 730 ILCS 5/3-6-3(a)(2)(ii) (West 2006) 1 (in effect, requiring a prisoner convicted of

attempted murder to serve 85% of his sentence); People ex rel. Ryan v. Roe, 201 Ill. 2d 552, 556

(2002). Defendant again asserted he believed it was 50%. He also complained that the court did

not order a PSI. Defendant argued that since he did not have full knowledge of the consequences

of his plea, it was not voluntary and knowing.

¶8 Defendant’s petition advanced to the second stage of postconviction proceedings, where

he was assigned a public defender to represent him. Postconviction counsel then filed a written

Rule 651(c) certificate of compliance. The State filed a motion to dismiss, arguing the percentage

of time served was a collateral consequence of the plea and not a required admonishment. In a

written motion and at oral arguments, postconviction counsel added that defendant’s trial counsel

was constitutionally ineffective for failing to inform him he would have to serve 85% of his

sentence, making his plea involuntary and thus denying him the benefit of his bargain.

1 Notably, section 3-6-3(a)(2)(ii) governs only the potential credit that a defendant may receive for good conduct. People v. Davis, 405 Ill. App. 3d 585, 603 (2010). The award of any good-conduct credit is contingent upon a defendant’s behavior in prison, and there is no guarantee that the defendant will receive any credit. Id.

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Postconviction counsel asserted that defendant would not have pleaded guilty had he known

about the correct good time conduct credit.

¶9 The court granted the State’s motion to dismiss defendant’s postconviction petition.

Defendant appealed.

¶ 10 ANALYSIS

¶ 11 The Act provides a three-stage process by which defendants may assert that their

convictions were the result of a substantial denial of their constitutional rights. People v. Boclair,

202 Ill. 2d 89, 99-100 (2002); People v. Burt, 205 Ill. 2d 28, 35-36 (2001). The instant case

involves the second stage of the postconviction process. At this stage, dismissal is warranted

when the defendant’s allegations, liberally construed in light of the trial record, fail to make a

substantial showing of a constitutional violation. People v. Coleman, 183 Ill. 2d 366, 382 (1998).

Any factual allegations not positively rebutted by the record are considered true. People v. Hall,

217 Ill. 2d 324, 334 (2005). Our review at the second stage is de novo. Coleman, 183 Ill. 2d at

389.

¶ 12 Defendant now challenges the second-stage dismissal of his postconviction petition, with

his sole contention being that he was denied reasonable assistance of counsel. Indeed, the right to

postconviction counsel is a matter of legislative grace, and a postconviction petitioner is only

entitled to a reasonable level of assistance. People v. Perkins, 229 Ill. 2d 34, 42 (2007); People v.

Pinkonsly, 207 Ill. 2d 555, 567 (2003). Rule 651(c) provides that reasonable assistance requires

performance of three duties. Counsel must: (1) consult with the defendant either by mail or in

person to ascertain the contentions of deprivation of constitutional rights; (2) examine the record

of the trial court proceedings; and (3) make any amendments to the pro se petition necessary for

an adequate presentation of the defendant’s contentions. Ill. S. Ct. R. 651(c) (eff. July 1, 2017);

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Perkins, 229 Ill. 2d at 42. The purpose of Rule 651(c) is to “ensure that postconviction counsel

shapes the defendant’s claim into a proper legal form and presents them to the court.” People v.

Profit, 2012 IL App (1st) 101307, ¶ 18. In doing so, counsel is not required to advance

nonmeritorious claims on defendant’s behalf. People v. Pendleton, 223 Ill. 2d 458, 472 (2006).

¶ 13 Our review of an attorney’s compliance with a supreme court rule is also de novo. People

v. Jones, 2011 IL App (1st) 092529, ¶ 19. Where, as here, postconviction counsel files a Rule

651(c) certificate, a rebuttable presumption is created that postconviction counsel provided

reasonable assistance, and it is then the defendant’s burden to overcome this presumption by

demonstrating that counsel failed to substantially comply with the duties required by the rule.

Profit, 2012 IL App (1st) 101307, ¶ 19.

¶ 14 Defendant does not now dispute that his postconviction counsel consulted with him and

examined the trial court proceedings, the first two prongs of Rule 651(c). Rather, he maintains

that counsel failed to make the necessary amendments to his pro se petition in order to

adequately present defendant’s contentions, as required by the third prong of Rule 651(c). In

support, defendant notes that his postconviction counsel argued both orally and in her written

motion that defendant’s trial counsel was constitutionally ineffective under Strickland v.

Washington, 466 U.S. 668 (1984), but then failed to amend his pro se petition to reflect this

claim. Defendant argues this violated Rule 651(c), and the record therefore rebuts counsel’s

certificate. We disagree.

¶ 15 While postconviction counsel may raise additional issues if he or she so chooses, there is

no obligation to do so. Pendleton, 223 Ill. 2d at 476; see also People v. Rials, 345 Ill. App. 3d

636, 641 (2003) (“ ‘[P]ostconviction counsel is not required to comb the record for issues not

raised in the defendant’s pro se post-conviction petition.’ ”). In other words, fulfillment of the

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third obligation under Rule 651(c) does not require postconviction counsel to advance frivolous

or spurious claims on defendant’s behalf. People v. Greer, 212 Ill. 2d 192, 205 (2004). Since the

underlying claim is just that, frivolous, we cannot countenance defendant’s argument on appeal.

The following demonstrates our point.

¶ 16 For the ineffective assistance of trial counsel claim, under Strickland, a defendant must

show that counsel’s performance fell below an objective standard of reasonableness and that he

was prejudiced by counsel’s performance. People v. Brown, 2017 IL 121681, ¶ 26. As to the

second prong, a guilty-plea defendant must show that there’s a reasonable probability that but for

counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Id.

In addition, he must convince the court that a decision to reject the plea bargain would have been

rational under the circumstances surrounding his plea. Id. ¶ 48.

¶ 17 Here, notably, there is no allegation that trial counsel misinformed defendant of good

time conduct credit, which would require a different analysis. See Brown, 2017 IL 121681, ¶¶

23, 27 (noting that counsel’s misinformation as to sentencing credit can constitute objectively

unreasonable conduct). More importantly, however, aside from addressing whether trial counsel

even had to inform defendant about good time conduct credit, which is still considered a

collateral matter, defendant’s argument holds no water under the Strickland prejudice prong. See

People v. Boyd, 2018 IL App (5th) 140556, ¶ 20 (noting that Illinois courts have consistently

held that good time credit is a collateral consequence of a guilty plea and that plea counsel’s

failure to advise of a collateral consequence does not provide a basis to invalidate the plea); see

also People v. LaPointe, 2015 IL App (2d) 130451, ¶¶ 73, 84-85 (holding that plea counsel was

not ineffective for failing to inform the defendant of good conduct credit since it was a collateral

consequence of the guilty plea).

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¶ 18 Here, defendant’s most serious charges included two counts of attempted first degree

murder, each a Class X felony carrying 6 to 30 years in prison, plus a mandatory 25-year firearm

enhancement. See 720 ILCS 5/8-4(c)(1), (c)(1)(D) (West 2014); 730 ILCS 5/5-4.5-25(a) (West

2014). A guilty finding would have required him to serve the sentences consecutively. See 730

ILCS 5/5-8-4(d)(1) (West 2014). Thus, had defendant gone to trial, he would have faced 62 years

to life in prison for the attempted murders of the two victims, to be served at 85%. In his reply

brief, defendant effectively concedes these facts as to his sentence. Indeed, it’s worth noting that

codefendant Gipson proceeded to a bench trial, was found guilty of attempting to murder the two

victims, and received a 52-year sentence. See People v. Gipson, 2015 IL App (1st) 122451, ¶¶ 1,

80 (reversed and remanded on other grounds).

¶ 19 By pleading guilty, however, defendant received only a single Class X felony conviction

with the minimum sentence of 31 years’ imprisonment, and critically, the State dropped the

remaining charges. Given the nature of the crime, which was an “ambush style” shooting,

defendant likely would have received a minimum sentence of 62 years. See id. ¶ 24. In addition,

nothing in the plea colloquy indicates defendant hung his hat on serving a sentence at 50% or

was promised anything to get him to plead guilty. As such, nothing in the record demonstrates

that a decision to reject the plea “would have been rational under the circumstances” of

defendant’s particular case. See Brown, 2017 IL 121681, ¶ 51. As a result, defendant’s

ineffective assistance of counsel claim holds no teeth and defendant cannot establish that his

postconviction counsel was unreasonable for failing to amend his petition to advance a frivolous

or spurious claim. See People v. Johnson, 232 Ill. App. 3d 674, 678 (1992) (noting, a mere

failure to amend the pro se petition is not enough to establish inadequacy of representation in the

absence of a showing that the petition could have been successfully amended). There could be no

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substantial showing of a constitutional violation. 2 See Coleman, 183 Ill. 2d at 382. Defendant has

thus failed to fulfill his burden of overcoming the presumption of reasonable assistance created

by the Rule 651(c) certificate. See Profit, 2012 IL App (1st) 101307, ¶ 19.

¶ 20 The cases cited by defendant do not compel a different result. In People v. Kirk, 2012 IL

App (1st) 101606, the defendant was found guilty of the aggravated battery with a firearm for

shooting his roommate. He then filed a postconviction petition essentially alleging that he had

evidence, pursuant to People v. Lynch, 104 Ill. 2d 194 (1984), showing the victim’s violent

tendencies and his trial counsel was ineffective for failing to present this evidence. This court

held the record contradicted his claim, and as such, the defendant’s postconviction counsel was

not unreasonable in declining to amend the pro se petition to reflect substanceless allegations.

Nonetheless, this court held that postconviction counsel should have amended the petition to

reflect postconviction counsel’s oral claim, argued against the State’s motion to dismiss, that

appellate counsel was ineffective for failing to raise the Lynch issue. This court noted, that

“claim was derived from the defendant’s allegations and presented by [postconviction] counsel

as the only cognizable legal avenue by which the court could reach the crux of the defendant’s

claims concerning the lack of Lynch evidence introduced at his trial.” Kirk, 2012 IL App (1st)

101606, ¶ 31. Thus, it was the necessary predicate to avoid forfeiture of the defendant’s

postconviction claims based on trial errors that had not been raised on direct appeal. See id. ¶ 13.

Notably, Kirk does not hold that any claim advanced by postconviction counsel at argument

2 Defendant maintains in his opening brief that he must only set forth a claim of arguable merit, but he cites no case law supporting that point. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (the argument must contain the contentions of the appellant and the reasons therefor with citation to authorities); People v. Robinson, 2013 IL App (2d) 120087, ¶ 15 (an appellant must present clearly defined issues supported by relevant authority, and the appellate court is “not simply a repository in which appellants may dump the burden of argument and research.”). Regardless, it’s well established that once a defendant reaches the second stage of proceedings, he must present claims of a substantial constitutional violation in order to proceed further. See Coleman, 183 Ill. 2d at 382.

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should also be made part of an amended petition, but rather one that possibly saves the petition’s

allegations.

¶ 21 Likewise, in People v. Suarez, 224 Ill. 2d 37 (2007), postconviction counsel failed to file

a 651(c) affidavit, and the record did not show compliance with 651(c). In that context, the

Suarez court held that remand was required regardless of whether the claims raised in the

petition were meritorious; the court found that noncompliance with the rule could not be excused

on the basis of harmless error. Suarez, 224 Ill. 2d at 51-52.

¶ 22 Here, as stated, counsel’s Rule 651(c) certificate gave rise to a rebuttable presumption

that he performed the duties required by the rule. And, contrary to defendant’s claim otherwise,

in this case, whether the allegations had merit was “crucial to determining whether counsel acted

unreasonably by not filing an amended petition.” Profit, 2012 IL App (1st) 101307, ¶¶ 22-23

(distinguishing Suarez on similar grounds). Kirk does not contradict this point, insofar as it held

postconviction counsel need not advance substanceless claims on a defendant’s behalf. Here,

defendant failed to establish that postconviction counsel’s ineffective assistance of trial counsel

argument was necessary to adequately present his contentions already raised in his pro se

postconviction. Defendant has thus failed to fulfill his burden of demonstrating that counsel did

not comply with the duties required by Rule 651(c). See Profit, 2012 IL App (1st) 101307, ¶ 19.

¶ 23 CONCLUSION

¶ 24 For all the reasons stated, defendant’s contention that his postconviction counsel was

unreasonable in representing him fails. We thus affirm the second-stage dismissal of his

postconviction petition.

¶ 25 Affirmed.

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