NOTICE 2020 IL App (5th) 170264-U NOTICE Decision filed 09/29/20. The This order was filed under text of this decision may be NO. 5-17-0264 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party 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, ) Madison County. ) v. ) No. 14-CF-587 ) TRUMEL FREEMAN, ) Honorable ) Jennifer L. Hightower, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE WHARTON delivered the judgment of the court. Justices Barberis and Boie concurred in the judgment.
ORDER
¶1 Held: Where postconviction counsel provided the defendant with reasonable assistance, and the circuit court did not err in dismissing the defendant’s second amended postconviction petition, and any argument to the contrary would lack merit, the defendant’s court-appointed appellate counsel is granted leave to withdraw, and the judgment of the circuit court is affirmed.
¶2 The defendant, Trumel Freeman, pursuant to a fully negotiated plea agreement with the
State, pleaded guilty to one count of armed robbery and was sentenced to imprisonment for 18
years. He did not seek to withdraw his guilty plea, and he did not attempt to appeal from the
judgment of conviction. Approximately 14 months after the plea, the defendant filed a pro se
petition for postconviction relief. Appointed postconviction counsel filed an amended
postconviction petition and eventually filed a second amended postconviction petition. On the
State’s motion, the circuit court dismissed the second amended petition. The defendant now 1 appeals from that dismissal. The Office of the State Appellate Defender (OSAD) was appointed
to represent the defendant in this appeal, but OSAD has concluded that the appeal lacks merit. On
that basis, OSAD has filed a motion to withdraw as counsel, along with a memorandum of law in
support of the motion. See Finley v. Pennsylvania, 481 U.S. 551 (1987). OSAD served the
defendant with a copy of its Finley motion and its supporting memorandum of law. This court
provided the defendant with ample opportunity to file a written response to OSAD’s motion, or a
memorandum, brief, etc., explaining why his appeal has merit, but the defendant has not taken
advantage of that opportunity. This court has examined OSAD’s Finley motion and accompanying
memorandum, as well as the entire record on appeal, and has determined that this appeal does not
present any issue of arguable merit. Accordingly, OSAD is granted leave to withdraw as counsel
for the defendant, and the judgment of the circuit court is affirmed.
¶3 BACKGROUND
¶4 In April 2014, a grand jury returned an indictment charging the defendant with three counts
of armed robbery. The three counts stemmed from three separate robberies, of three different
complainants, committed on three different days. Count I alleged that the defendant was “armed
with a firearm” while committing a robbery in 2012. See 720 ILCS 5/18-2(a)(2) (West 2012).
Counts II and III alleged that he was “armed with a dangerous weapon, a BB gun” while
committing robberies in 2013 and 2014, respectively. See id. § 18-2(a)(1). Armed robbery was a
Class X felony, but armed robbery as charged in count I—that is, robbery while armed with a
firearm—carried a mandatory 15-year sentencing enhancement. See 720 ILCS 5/18-2(b) (West
2014). The defendant’s public defender filed a motion to suppress statements that the defendant
had made to police interrogators.
2 ¶5 On September 3, 2014, the defendant, his public defender, and an assistant state’s attorney
appeared before the circuit court. The public defender informed the court that the parties had
reached a plea agreement whereby the defendant would plead guilty to armed robbery as charged
in count II and would be sentenced to imprisonment for a term of 18 years, while counts I and III
would be dismissed, plus a petition to revoke probation in an unrelated felony case would be
dismissed.
¶6 The circuit court read aloud from count II of the indictment and asked the defendant
whether he understood the charge, and the defendant indicated that he did understand it. The court
then read aloud the statute that count II charged the defendant with violating, and the defendant
indicated his understanding of the statute. The court asked the defendant how he wished to plead
to that particular charge, and the defendant answered, “Guilty.” The court admonished the
defendant of his right to plead guilty or not guilty, his right to a trial, whether by a jury or by a
judge alone, his right not to testify at the trial, his rights to cross-examine the State’s witnesses and
to subpoena witnesses of his own, his right to be represented by an attorney or to represent himself,
the presumption of innocence, and the State’s burden of proof. The defendant indicated that he
understood all these matters and did not have any questions about them. In response to further
queries from the circuit court, the defendant indicated his understanding that a guilty plea would
involve waiving the various rights he possessed, and he also indicated that he was satisfied with
his public defender’s representation. The court informed the defendant that his charge was a Class
X felony punishable, inter alia, by imprisonment for a term of 6 to 30 years, and that a prison term
would be followed by a 3-year term of mandatory supervised release (MSR), and the defendant
indicated that he understood the possible penalties.
3 ¶7 The State provided a factual basis for the defendant’s guilty plea, stating that the State, at
a trial, would call as witnesses various unnamed Alton police officers and the complainant, and
those witnesses would testify that on August 24, 2013, an individual followed the complainant
from his convenience store to his residence, where the individual “by the use of a BB gun” took
cash from the complainant “by threatening imminent use of force”, and the individual was later
identified as the defendant. Then, in response to further inquiries from the court, the defendant
indicated that he was pleading guilty freely and voluntarily, that he had discussed the plea with his
public defender, that nobody had used force or threats in an attempt to cause him to plead guilty,
and that nobody had promised him anything outside the terms of the plea agreement. The court
announced that it would bind itself to the parties’ plea agreement. Again, the court asked the
defendant whether he wanted to plead guilty to count II, and the defendant answered in the
affirmative. Finding that the defendant was pleading guilty knowingly, freely, and voluntarily, the
court accepted the plea. In accordance with the plea agreement, the court sentenced the defendant
to 18 years of imprisonment followed by 3 years of MSR. The defendant indicated that he
understood the sentence, that it was the sentence the parties had negotiated, and that he did not
have any questions about it. The court dismissed the other two armed-robbery counts against the
defendant. Finally, the court admonished the defendant as to his right to an appeal, including the
necessity of a motion to withdraw the guilty plea, and the defendant indicated his understanding.
The court entered a written judgment that reflected the agreed-upon sentence of imprisonment.
¶8 The defendant did not file a motion to withdraw his guilty plea. He did not attempt to
appeal from the judgment of conviction.
¶9 In November 2015, the defendant filed a pro se petition for postconviction relief. He
claimed that he had been deprived of the effective assistance of counsel and the due process of
4 law. The defendant alleged that (1) the State failed to establish that the defendant’s BB gun was a
“dangerous weapon”, and therefore one of the elements of armed robbery was not established;
(2) his public defender never argued that the charging instrument’s armed-robbery count, which
“label[ed]” the BB gun as a dangerous weapon, was defective, and he never sought to amend the
armed-robbery count; and (3) his public defender allowed the defendant to be sentenced for armed
robbery even though an element of that offense had not been established. For relief, the defendant
requested that the circuit court “amend” the armed-robbery count so as to charge robbery. In
December 2015, the circuit court found that the pro se petition was not frivolous or patently
without merit. The court advanced the petition to the second stage of postconviction proceedings
and appointed postconviction counsel for the defendant.
¶ 10 On February 11, 2016, the circuit court received a letter from the defendant, wherein he
stated that he was requesting, as postconviction relief, that the court amend the charge from armed
robbery to simple robbery.
¶ 11 In April 2016, the defendant filed, through postconviction counsel, an amended
postconviction petition. The amended petition set forth several claims of constitutionally
ineffective assistance by the public defender who had represented the defendant at the guilty-plea
hearing (hereinafter, plea counsel). For relief, the amended postconviction petition requested that
the court “release [the defendant] from custody, vacate the [j]udgment or in the alternative grant
him a new trial.”
¶ 12 On July 7, 2016, postconviction counsel filed a certificate of compliance with Illinois
Supreme Court Rule 651(c) (eff. Feb. 6, 2013). Counsel certified that he had consulted with the
defendant in person and by mail in order to ascertain the defendant’s contentions of deprivation of
constitutional right, had examined the trial court file and the report of proceedings of the plea of
5 guilty, and had amended the pro se petition for an adequate presentation of the defendant’s
contentions.
¶ 13 Also on July 7, 2016, the court received another letter from the defendant, wherein the
defendant stated that he “disagreed with the relief that [postconviction counsel] asked for.” The
defendant wrote that he was not seeking a new trial, but he wanted the court to release him from
custody, to vacate the judgment, or to amend the charge from armed robbery to robbery.
¶ 14 On September 2, 2016, the court received another letter from the defendant, stating that he
wanted to have the charge amended from armed robbery to simple robbery.
¶ 15 On October 26, 2016, the defendant, postconviction counsel, and an assistant state’s
attorney appeared before the circuit court. In detail, the court reviewed the procedural history of
the postconviction proceedings, and it read from letters that the defendant had mailed to the court.
Then, the court asked the defendant whether he, on five separate occasions, had indicated that the
relief he wanted was for the court to amend his charge from armed robbery to simple robbery, and
whether he, on at least two occasions, had indicated that he did not want a trial, and the defendant
answered, “Correct.” At that point, the court informed the defendant that it did not have the
authority to amend the charge, and that if the court agreed with the defendant on the postconviction
claim of ineffective assistance of plea counsel, the only relief that the court could grant would be
a trial. The defendant indicated his understanding. Later in the hearing, the defendant told the
court that he had learned, through his own legal research, that the charge to which he had pleaded
guilty could not be amended. Still later in the hearing, the defendant clarified that he was claiming
that his guilty plea was involuntary due to his being manipulated by plea counsel. The defendant
explained that he did not learn until sometime after the plea that “these weapons alleged to be used
were not dangerous weapons.” The defendant seemed to be claiming that plea counsel had
6 manipulated him into pleading guilty by failing to inform him that the BB gun did not qualify as a
“dangerous weapon” for purposes of the armed-robbery statute that he had pleaded guilty to
violating. See 720 ILCS 5/18-2(a)(1) (West 2014). Postconviction counsel stated that he would
prepare and file a second amended petition for postconviction relief.
¶ 16 On March 20, 2017, the defendant filed, through postconvicton counsel, a second amended
postconviction petition. The second amended petition is the subject of the instant appeal. The
second amended petition explicitly incorporated by reference all of the claims that the defendant
had presented in his pro se postconviction petition, filed in November 2015. (Those pro se
postconviction claims are summarized supra.) Also, the second amended petition set forth
multiple claims of constitutionally ineffective assistance by plea counsel. Specifically, it alleged
that plea counsel (1) failed “to require proof that the weapon alleged to be used, ‘a BB gun’ was a
dangerous weapon”; (2) failed “to challenge the sufficiency” of the indictment; (3) failed “to
challenge the charge, allowing it to remain Armed Robbery, rather than Simple Robbery”;
(4) failed “to challenge the statement of the ‘victim’ that the ‘weapon’ was ‘black’ ”; (5) allowed
the defendant “to plead to an 18 year sentence” even though the sentence was “not possible” in
light of the failure to establish that the defedant’s BB gun was a dangerous weapon; (6) failed to
file a motion to suppress the defendant’s statements to police interrogators; and (7) failed to “go
forward” with a motion to suppress evidence of the BB gun that police had seized. For relief, the
defendant prayed that the court “release Defendant from custody, vacate the Judgment or in the
alternative grant him a new trial.”
¶ 17 A few weeks after the defendant filed his second amended postconviction petition, the State
filed a motion to dismiss it. On June 12, 2017, the circuit court entered a written order granting
the State’s motion to dismiss the defendant’s second amended postconviction petition. The court
7 discussed each of the claims presented in that petition, and concluded that the defendant had failed
to make a substantial showing of a constitutional violation. The defendant filed a notice of appeal
from the dismissal of his petition, thus perfecting the instant appeal.
¶ 18 ANALYSIS
¶ 19 As previously noted, OSAD has filed a Finley motion to withdraw as counsel for the
defendant, along with a memorandum of law in support of the motion. In the memorandum, OSAD
discusses two potential issues in this appeal, viz.: (1) whether the circuit court erred in dismissing
the defendant’s second amended postconviction petition and (2) whether postconviction counsel
complied with Rule 651(c). An examination of the record on appeal reveals that neither of these
potential issues has any merit.
¶ 20 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)) provides
a three-stage mechanism by which a criminal defendant may collaterally attack his conviction
based on a substantial denial of his constitutional rights during the proceedings that resulted in the
conviction. Id. § 122-1(a)(1); People v. Gaultney, 174 Ill. 2d 410, 418 (1996). Proceedings under
the Act are commenced by the criminal defendant’s filing of a petition in the circuit court in which
the conviction took place. 725 ILCS 5/122-1(b) (West 2016). If a postconviction petition survives
the first stage of postconviction proceedings, that is, if the petition is not summarily dismissed as
frivolous or patently without merit, it advances to the second stage of postconviction proceedings.
Id. § 122-2.1(b); People v. Hodges, 234 Ill. 2d 1, 9-12 (2009).
¶ 21 At the second stage of postconviction proceedings, postconviction counsel may be
appointed for an indigent defendant. 725 ILCS 5/122-4 (West 2016). The State may either answer
the postconviction petition or move to dismiss it. Id. § 122-5. If the State moves to dismiss the
petition, the circuit court must decide whether to grant the State’s motion or to advance the petition
8 to the third stage of postconviction proceedings, where an evidentiary hearing is held. People v.
Dupree, 2018 IL 122307, ¶ 28. At the second stage, all of the petition’s allegations must be taken
as true, unless they are affirmatively rebutted by the record. Id. ¶ 29. There is no room for judicial
fact-finding or credibility determinations; those tasks are reserved for the third-stage evidentiary
hearing, if one is held. Id. The court merely determines the legal sufficiency of the petition’s
allegations. Id. The dispositive question for the court is whether the postconviction petition’s
allegations, supported by affidavits, records, or other evidence, make a substantial showing of a
deprivation of constitutional rights. Id. ¶ 28. If there is no substantial showing of constitutional
deprivation, the court must dismiss the petition; if a substantial showing is made, the petition is
advanced to the third stage, where an evidentiary hearing is held and the court engages in fact-
finding and credibility determinations. Id. ¶¶ 28-29. This court reviews de novo the dismissal of
a postconviction petition. People v. Cotto, 2016 IL 119006, ¶ 24.
¶ 22 A key fact in this case is that the defendant pleaded guilty. He pleaded guilty to one count
of armed robbery (see 720 ILCS 5/18-2(a)(1) (West 2014)) after the circuit court thoroughly
admonished him in compliance with Illinois Supreme Court Rule 402(a) (eff. July 1, 2012) and
after the court carefully determined that his plea was voluntary, in accordance with Illinois
Supreme Court Rule 402(b) (eff. July 1, 2012). The applicable armed-robbery statute stated that
a person committed armed robbery when he or she committed robbery and “carrie[d] on or about
his or her person or [was] otherwise armed with a dangerous weapon other than a firearm.” 720
ILCS 5/18-2(a)(1) (West 2014).
¶ 23 The first potential issue in this appeal, as discussed by OSAD in its memorandum of law,
is whether the circuit court erred in dismissing the defendant’s second amended postconviction
petition. This issue can be rephrased as whether the defendant, in his second amended
9 postconviction petition, made a substantial showing of a constitutional violation. In its
memorandum, OSAD discusses all of the claims set forth in the defendant’s second amended
petition. This court, too, will discuss those claims.
¶ 24 In regard to the defendant’s postconviction claim that plea counsel was constitutionally
ineffective for failing to “require proof” that the defendant’s BB gun qualified as a “dangerous
weapon” under the armed-robbery statute, OSAD correctly notes that the defendant pleaded guilty
to that offense, thus waiving his right to a trial, and therefore there was no occasion for counsel to
“require proof” of the dangerous quality of the BB gun. A defendant’s valid plea of guilty to an
offense relieves the State of the burden of proving any element of the offense. See, e.g., People v.
Rhoades, 323 Ill. App. 3d 644, 651 (2001) (a guilty plea “removes the prosecution’s burden of
proof, as it supplies both the evidence and the verdict”).
¶ 25 As for the postconviction claim that plea counsel was ineffective for failing to “challenge”
the complainant’s “statement” that the robber’s weapon was black, here too the defendant’s guilty
plea eliminated the opportunity for counsel to take the action that the defendant claimed he should
have taken. Without a trial, and testimony by the complainant, there was no opportunity for
counsel to challenge the complainant’s statement describing the gun. (In addition, the defendant
did not even attempt to explain how his case might have been affected by counsel’s failure to
“challenge” the complainant’s “statement” about the weapon’s color.)
¶ 26 In regard to the postconviction claim that plea counsel was ineffective for failing to
challenge the sufficiency of the indictment or for failing to challenge count II of the indictment,
OSAD correctly notes that count II of the indictment—the armed-robbery count to which the
defendant pleaded guilty—specified that U.S. currency was taken during the robbery, specified the
name of the person from whom the money was taken, specified that the defendant threatened the
10 imminent use of force, and specified that he was armed with a dangerous weapon, a BB gun. This
court notes that count II also included the defendant’s name, the date of the alleged robbery, the
county in which the robbery was committed, and the name and statutory provision of the offense.
Counts I and III of the indictment were similarly complete. In short, the indictment informed the
defendant of the exact offense charged, with specificity sufficient to allow him to prepare a defense
and to allow pleading a resulting conviction as a bar to future prosecution arising out of the same
conduct, and therefore the indictment was sufficient. See People v. Benitez, 169 Ill. 2d 245, 257
(1996). There was no apparent basis for challenging the indictment or any particular count therein.
¶ 27 Another of the defendant’s postconviction claims was that plea counsel was ineffective for
allowing the defendant “to plead to an 18 year sentence” even though the sentence was “not
possible” in light of the failure to establish that the defedant’s BB gun was a dangerous weapon.
As previously discussed, the defendant’s knowing and voluntary guilty plea, in and of itself,
established that the BB gun was a dangerous weapon, as alleged in the indictment. Because there
was no trial, the State had no occasion or need to prove the BB gun’s dangerousness. (Of course,
if the defendant had persisted in his plea of not guilty and the cause had proceeded to trial, the
State would have been obliged to prove that the BB gun was a dangerous weapon. See, e.g., People
v. Thorne, 352 Ill. App. 3d 1062, 1072 (2004), wherein the court held that the issue of whether the
defendant’s BB gun qualified as a dangerous weapon under the armed-robbery statute was a
question of fact for the jury to determine.) Once the defendant’s knowing and voluntary guilty
plea established all the elements of armed robbery, a Class X felony, the defendant was subject to
a sentence of imprisonment for a term of 6 to 30 years. See 730 ILCS 5/5-4.5-25(a) (West 2012).
The defendant’s 18-year sentence certainly fell within this statutory range, and therefore the
sentence was indeed possible in this case.
11 ¶ 28 The defendant’s final postconviction claim was that plea counsel was ineffective for failing
to file a motion to suppress the defendant’s statements to police interrogators and for failing to “go
forward” with a motion to suppress evidence of the BB gun that police had seized. As OSAD
notes, the defendant’s allegation that counsel failed to file a motion to suppress statements is
affirmatively rebutted by the record. A motion to suppress statements is part of the record on
appeal; the motion was filed by plea counsel, on behalf of the defendant, on August 5, 2014, and
it was scheduled for a hearing on September 4, 2014. The hearing on the suppression motion was
not held, however, because the defendant pleaded guilty, pursuant to his fully negotiated plea
agreement, on September 3, 2014. As for a suppression motion concerning the BB gun, nothing
in the record indicates that the police seized a BB gun in this case, and the defendant did not offer
any rationale for a suppression motion, any reason to think that one might have been successful if
filed, or any indication of how suppression might possibly have affected his case.
¶ 29 In sum, the defendant’s second amended postconviction petition did not make a substantial
showing of a constitutional violation, and therefore the circuit court did not err in dismissing the
petition. This court agrees with OSAD that any argument to the contrary would be meritless.
¶ 30 The second potential issue identified by OSAD is whether postconviction counsel complied
with Rule 651(c). Postconviction counsel filed a certificate of compliance with Rule 651(c), and
his certificate closely tracked the language of the rule itself. The certificate, wherein counsel
described how he fulfilled his duties under the rule, creates a presumption that he fulfilled those
duties and provided the defendant with the required level of postconviction legal assistance, which
is a reasonable level of assistance. See, e.g., People v. Jones, 2011 IL App (1st) 092529, ¶ 23.
Nothing in the record rebuts this presumption.
12 ¶ 31 CONCLUSION
¶ 32 With his second amended postconviction petition, the defendant failed to make a
substantial showing of a constitutional violation. Therefore, the circuit court did not err in
dismissing the petition. No meritorious argument to the contrary is possible. Postconviction
counsel provided the defendant with a reasonable level of assistance, as required by law. Again,
no contrary argument would have merit. Accordingly, OSAD is granted leave to withdraw as
counsel for the defendant in this appeal, and the judgment of the circuit court is affirmed.
¶ 33 Motion granted; judgment affirmed.