2023 IL App (4th) 221091-U FILED NOTICE October 24, 2023 This Order was filed under NO. 4-22-1091 Carla Bender Supreme Court Rule 23 and is 4th District Appellate not precedent except in the IN THE APPELLATE COURT Court, IL limited circumstances allowed under Rule 23(e)(1). OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County MONTEL GUIDEN, ) No. 17CF1273 Defendant-Appellant. ) ) Honorable ) William G. Workman, ) Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court. Justices Turner and Steigmann concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, finding defendant failed to attach necessary supporting material to his postconviction petition or sufficiently explain its absence.
¶2 Following an August 2019 bench trial, defendant, Montel Guiden, was found
guilty of aggravated driving under the influence (DUI) (625 ILCS 5/11-501(D)(2)(C) (West
2016)). In August 2022, defendant filed a pro se postconviction petition alleging ineffective
assistance of trial counsel. The trial court summarily dismissed the petition. On appeal, defendant
argues the court erred in dismissing his petition where trial counsel provided ineffective
assistance for failing to investigate and challenge whether arresting officers complied with
National Highway and Traffic Safety Administration (NHTSA) protocols when administering his
field sobriety tests. We affirm.
¶3 I. BACKGROUND ¶4 In November 2017, defendant was charged by indictment with aggravated DUI,
his fourth offense after three prior DUI convictions in 2003, 2004, and 2006. Defendant waived a
jury and proceeded to a bench trial.
¶5 At trial, police officer Ryan Strebing testified he observed defendant fail to signal
when turning on three separate occasions. He performed a traffic stop. Strebing stated he was
trained to administer field sobriety testing in accordance with NHTSA guidelines both when he
was hired by the Champaign Police Department and through a refresher course upon joining the
Bloomington Police Department. Under the NHTSA guidelines, there are three phases of a DUI
traffic stop: (1) when the vehicle is in motion, (2) personal contact, and (3) field sobriety testing.
Regarding the first phase, Strebing recounted defendant’s failure to signal three times within a
couple of minutes as a clue for impairment. During the personal contact phase, Strebing noted
defendant had bloodshot eyes and slurred speech. Strebing stated he did not smell the odor of
alcohol coming from defendant, but defendant continually turned his head away from Strebing,
which Strebing found odd. Strebing later inspected defendant’s mouth and did not smell an odor
of alcohol then either.
¶6 Defendant provided Strebing with a restricted driving permit. Defendant’s
restricted driving permit required him to have a breath alcohol ignition interlock device (BAIID)
installed in the vehicle he was driving, and he was only permitted to drive within a certain radius
of a Chicago, Illinois address. Because the vehicle defendant was operating did not have a
BAIID installed, he was taken into custody. Defendant was transported to the parking garage of
the Bloomington Police Department to perform field sobriety testing.
¶7 Strebing stated he administered the horizontal gaze nystagmus test according to
NHTSA guidelines. Strebing observed defendant exhibit four out of six clues of impairment.
-2- Strebing observed defendant exhibit five out of eight clues of impairment for the walk and turn
test and three out of four clues of impairment during the one-leg stand test. Strebing believed
defendant was under the influence based upon his observations and subsequently arrested
defendant for suspicion of DUI. Strebing noted he smelled alcohol on defendant’s breath during
field sobriety testing and when defendant was in the back seat of his police vehicle.
¶8 Police officer John Fermon testified he was the field training officer who assisted
Strebing’s traffic stop. Fermon observed defendant in the driver’s seat, an adult passenger, and
two children in the back seat not in the required child safety seats. Fermon performed a vehicle
inventory search and discovered two open containers of alcohol approximately one-quarter full
underneath the driver’s seat, a cannabis pipe in the center console, and an alcohol container
under the passenger’s seat. During cross-examination, Fermon stated he supervised Strebing
while he administered the field sobriety testing on defendant. Fermon believed defendant was
impaired based upon his experience and observations of defendant.
¶9 Defendant testified he did not have “anything to drink” on the date of the incident.
A.C. Rogers, a friend of defendant, was seated in the passenger’s seat. According to defendant,
Rogers entered the car with a bag and, shortly thereafter, defendant learned Rogers’s bag
contained alcoholic beverages. Defendant denied anyone consumed the alcohol contained in
Rogers’s bag while in the car.
¶ 10 The trial court found defendant guilty of DUI.
¶ 11 Defendant, through posttrial counsel, filed a motion for a new trial. Defendant
argued (1) the State failed to prove him guilty beyond a reasonable doubt, (2) the trial court erred
in denying his motion for a directed verdict and denying his objections to “certain” evidence and
witness testimony offered by the State, and (3) his trial counsel was ineffective for failing to
-3- object to witness testimony offered by the State and failing to introduce the entirety of the video
evidence presented at trial. The court denied defendant’s motion.
¶ 12 Defendant was sentenced to four years in prison for his aggravated DUI
conviction in this case and received a consecutive one-year sentence in an unrelated McLean
County case.
¶ 13 Defendant filed a motion to reconsider his sentence, arguing the trial court erred
when considering both aggravating and mitigating factors. The court denied defendant’s motion.
¶ 14 Defendant filed a direct appeal, arguing his jury trial waiver was not knowingly
and voluntarily made. We affirmed. People v. Guiden, No. 4-20-0584 (Mar. 1, 2022)
(unpublished summary order).
¶ 15 In February 2021, defendant filed a petition for relief from judgment pursuant to
section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2020)), arguing the
State presented perjured witness testimony and his trial counsel was ineffective. The trial court
denied defendant’s petition. In July 2021, defendant filed another petition for relief from
judgment. However, the record in this appeal does not show any proceedings or resolution
regarding this second petition.
¶ 16 In August 2022, defendant filed a pro se postconviction petition. Defendant
argued (1) Strebing provided perjured testimony, (2) various claims of ineffective assistance of
trial counsel, and (3) new evidence that was not presented at trial. Relevant to this appeal,
defendant argued trial counsel failed to challenge the field sobriety testing defendant performed
because it was not administered in accordance with NHTSA requirements. The trial court
dismissed defendant’s petition as frivolous and patently without merit.
¶ 17 This appeal followed.
-4- ¶ 18 II. ANALYSIS
¶ 19 On appeal, defendant argues the trial court erred by summarily dismissing his
pro se petition where he raised an arguable claim his trial counsel was ineffective. Specifically,
defendant contends counsel failed to investigate and challenge whether his field sobriety tests
were administered according to NHTSA protocols.
¶ 20 A. Post-Conviction Hearing Act
¶ 21 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122 et seq.) (West 2022))
provides a defendant with a collateral means to challenge his conviction or sentence for
violations of federal or state constitutional rights. People v. Jones, 211 Ill. 2d 140, 143 (2004).
The adjudication of a postconviction petition follows a three-stage process. Id. at 144. During the
first stage, the trial court must, independently and without considering any argument by the
State, decide whether the defendant’s petition is “frivolous or is patently without merit.” 725
ILCS 5/122-2.1(a)(2) (West 2022). To survive dismissal at the first stage, the postconviction
petition “need only present the gist of a constitutional claim,” which is a “low threshold” that
requires the petition to contain only a limited amount of detail. People v. Gaultney, 174 Ill. 2d
410, 418 (1996). Legal argument or citation to legal authority is not required. People v. Brown,
236 Ill. 2d 175, 184 (2010). The Act requires the petition to “have attached thereto affidavits,
records, or other evidence supporting its allegations or shall state why the same are not
attached.” 725 ILCS 5/122-2 (West 2022). In analyzing the petition, courts are to take the
allegations of the petition as true as well as liberally construe them. Brown, 236 Ill. 2d at 184.
¶ 22 The trial court may dismiss a pro se postconviction petition “as frivolous or
patently without merit only if the petition has no arguable basis either in law or in fact.” People
v. Hodges, 234 Ill. 2d 1, 11-12 (2009). A petition lacks an arguable legal basis when it is based
-5- on an indisputably meritless legal theory, such as one the record completely contradicts. Id. at
16. A petition lacks an arguable factual basis when it is based on a fanciful factual allegation,
such as one that is clearly baseless, fantastic, or delusional. Id. at 16-17. We review the trial
court’s dismissal of a postconviction petition without an evidentiary hearing de novo. People v.
Simms, 192 Ill. 2d 348, 360 (2000).
¶ 23 An ineffective assistance of counsel claim is evaluated under the standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Hodges, 234 Ill. 2d at 17. Strickland
requires a defendant to show trial counsel’s performance was both deficient and counsel’s
deficient performance prejudiced the defendant. Id. “At the first stage of postconviction
proceedings under the Act, a petition alleging ineffective assistance may not be summarily
dismissed if (i) it is arguable that counsel’s performance fell below an objective standard of
reasonableness and (ii) it is arguable that the defendant was prejudiced.” Id.
¶ 24 B. Forfeiture
¶ 25 The State argues defendant has forfeited his ineffective assistance claim because
it could have been raised on direct appeal but was not. Defendant argues his claim could not have
been raised on direct appeal because the NHTSA manual was not part of the original record on
appeal.
¶ 26 Indeed, the purpose of the Act is to “permit inquiry into constitutional issues ***
that were not, and could not have been, adjudicated previously on direct appeal.” People v.
English, 2013 IL 112890, ¶ 22. Any “issues that could have been raised on direct appeal, but
were not, are forfeited.” Id.
¶ 27 At trial, the parties merely referenced the NHTSA protocols. As defendant
correctly argues, the record on direct appeal did not contain the NHTSA manual. Because the
-6- NHTSA manual was not part of the record on direct appeal and is central to defendant’s
arguments in this appeal, we do not find defendant has forfeited this argument. See id. (holding
the forfeiture doctrine may be relaxed in proceedings under the Act where facts relating to the
issue do not appear in the original appellate record); see also People v. Harris, 2018 IL 121932,
¶ 48 (noting the Act is available to resolve constitutional issues dependent upon facts not found
in the record).
¶ 28 C. Section 122-2 Compliance
¶ 29 The State argues we should affirm the trial court because defendant did not attach
to his petition the NHTSA manual he relies upon to assert he received ineffective assistance of
counsel.
¶ 30 As stated, section 122-2 of the Act requires a postconviction petition to have
attached to it affidavits, records, or other evidence supporting its allegations or explain why such
attachments are absent. 725 ILCS 5/122-2 (West 2022). Section 122-2 is a “clear mandate” of
the Act. People v. Collins, 202 Ill. 2d 59, 66 (2002). Failure by a defendant to support his
allegations in a petition with affidavits, records, or other evidence and subsequently offer “no
explanation for the absence of such documentation” will “justif[y] the summary dismissal of [a]
defendant’s petition.” Id.
¶ 31 Defendant argues the State’s contention ignores the underlying claim in his
petition that trial counsel was ineffective for failing to investigate whether the field sobriety tests
were administered according to NHTSA standards. In support of his position, defendant cites
People v. Hall, 217 Ill. 2d 324, 333 (2005), wherein our supreme court held:
“Failure to attach independent corroborating documentation or explain its absence
may, nonetheless, be excused where the petition contains facts sufficient to infer
-7- that the only affidavit the defendant could have furnished, other than his own
sworn statement, was that of his attorney.”
¶ 32 We find Hall distinguishable. Hall involved the issue of whether the defendant’s
guilty plea was involuntary. Id. at 331. The defendant’s petition attached a transcript of the guilty
plea hearing, the charging instrument, and a detailed affidavit from the defendant alleging
misrepresentations by his attorney. Id. at 332-33. The defendant’s affidavit detailed his
consultations with his attorney and referenced no one else. Id. at 333. The Hall court noted the
defendant’s failure to explain the absence of additional documentation was easily inferred
because the only affidavit the defendant could have provided was that of his own attorney, whom
he was claiming was ineffective. Id. at 333-34.
¶ 33 Here, defendant is not simply arguing his trial counsel was ineffective for failing
to investigate compliance with NHTSA protocols. Defendant is explicitly arguing Strebing failed
to administer field sobriety tests in compliance with NHTSA protocols, and therefore, his trial
counsel was ineffective for both failing to investigate and challenge Strebing’s compliance with
NHTSA protocols. The NHTSA manual, which was not a part of the record on direct appeal, is
critical to defendant’s claims in this appeal. Therefore, unlike in Hall, defendant’s arguments are
not solely dependent on an affidavit from his trial counsel. Rather, defendant’s arguments in his
petition are dependent on the NHTSA protocols found within the NHTSA manual.
¶ 34 Defendant argues the threshold for postconviction petitions drafted by pro se
defendants is low. Defendant cites Hodges, 234 Ill. 2d at 9, which states, “because most petitions
are drafted at [the first] stage by defendants with little legal knowledge or training, this court
views the threshold for survival as low.” Thus, according to defendant, when he referenced
-8- NHTSA protocols in his petition, he had supplied a sufficient factual basis to show the
allegations in his petition are capable of objective or independent corroboration.
¶ 35 We disagree. Hodges explains the low threshold for survival under the Act
“requires “only that a pro se defendant allege enough facts to make out a claim that is arguably
constitutional for purposes of invoking the Act.” Id. The Hodges court also explains the “gist” of
a constitutional claim means “the section 122-2 pleading requirements are met, even if the
petition lacks formal legal arguments or citations to legal authority.” Id. Indeed, “the purpose of
section 122-2 is to show a defendant’s postconviction allegations are capable of objective or
independent corroboration.” Hall, 217 Ill. 2d at 333.
¶ 36 Central to defendant’s claim on appeal is whether Strebing administered field
sobriety tests in accordance with NHTSA protocols, but defendant does not attach the NHTSA
manual or any relevant portion therefrom to his petition. Defendant argues throughout his pro se
petition that Strebing administered the field sobriety testing incorrectly. Ordinarily, “[w]hether a
field-sobriety test was performed correctly goes to the test’s admissibility.” People v. Eagletail,
2014 IL App (1st) 130252, ¶ 39. However, in defendant’s pro se petition, he specifically argued
the “[field sobriety] test results are not reliable because neither officer didn’t [sic] administered
the test accordance with NHTSA protocol and requirements.” Defendant’s petition was not
challenging the admissibility of the field sobriety tests; rather, he was arguing the tests were
unreliable because they were performed incorrectly. Defendant’s argument, thus, attacks the
weight of the evidence to be given by the trier of fact, which is a factual issue. People v. Phillips,
2015 IL App (1st) 131147, ¶ 24 (stating where a defendant does not challenge the admissibility
of a field sobriety test, “but rather its probative value, [the defendant’s] challenge goes to the
weight accorded to this evidence, which is a factual determination reserved for the trier of fact”).
-9- Because defendant’s argument goes to a factual issue, the failure to attach the NHTSA protocols
as evidence central to defendant’s claims cannot be explained away on appeal as a failure to
make formal legal arguments or cite legal authority as stated in Hodges.
¶ 37 Defendant argues that because the State does not dispute the existence of the
NHTSA protocol and standards, defendant’s allegations are capable of independent
corroboration. Essentially, defendant argues the State has implicitly conceded the issue of the
NHTSA manual not being attached to defendant’s petition. However, whether the State were to
implicitly or even explicitly concede the issue, a reviewing court is not bound by a party’s
concession. People v. Horrel, 235 Ill. 2d 235, 241 (2009).
¶ 38 Defendant also contends this court may take judicial notice of the NHTSA
manual, which is readily available on the Internet. However, the NHTSA manual and the
protocols therein are evidentiary materials critical to defendant’s claims, and the manual was not
in the original record nor in the record in this appeal. “A reviewing court will not take judicial
notice of critical evidentiary material that was not presented to and not considered by the fact
finder during its deliberations.” People v. Barnham, 337 Ill. App. 3d 1121, 1130 (2003) (citing
Vulcan Materials Co. v. Bee Construction, 96 Ill. 2d 159 (1983)). “Judicial notice cannot be
extended to permit the introduction of new factual evidence not presented to the trial court.” Id.
¶ 39 Finally, defendant argues dismissal of his petition for failing to attach the NHTSA
manual would be contrary to our supreme court’s decisions holding that postconviction petitions
should be considered for their “substantive virtue” rather than for their procedural compliance.
Defendant cites People v. Boclair, 202 Ill. 2d 102 (2002), and People v. Hommerson, 2014 IL
115638, in support of his contention.
- 10 - ¶ 40 In Boclair, the supreme court held the timely filing of a postconviction petition
was not inherent to the right to file a petition. Boclair, 202 Ill. 2d at 101. Rather, the court stated
the State may raise the failure to file a timely petition under the Act as an affirmative defense at
the second stage of proceedings. Id. at 101-02. Thus, the trial court cannot sua sponte summarily
dismiss a petition at the first stage as untimely. Hommerson, relying on Boclair, stated that,
much like timeliness, the absence of a verification affidavit should not be considered by the trial
court at the first stage of proceedings under the Act. Hommerson, 2014 IL 115638, ¶¶ 10-11.
¶ 41 Both Boclair and Hommerson dealt with first-stage dismissals of petitions
pursuant to procedural requirements set forth in section 122-1 of the Act (see 725 ILCS 5/122-1
(West 2022)). At issue here is the substantive contents of the petition as set forth in section 122-
2. We find Collins instructive.
¶ 42 In Collins, the defendant failed to file a motion to withdraw his guilty plea, which
precluded his ability to seek a direct appeal. Collins, 202 Ill. 2d at 62. The defendant filed a
pro se postconviction petition alleging he wanted to file an appeal and that his counsel said he
would file an appeal. Id. The defendant only attached a sworn verification to his petition. Id. The
trial court summarily dismissed the defendant’s petition as frivolous and patently without merit.
Id.
¶ 43 On appeal, the appellate court reversed the trial court, finding the defendant’s
petition stated the gist of a constitutional claim. Id. at 64. The appellate court found the absence
of supporting affidavits was justified and it would have been unfair to require the defendant to
seek independent corroborating evidence from his counsel given the allegations included
ineffective assistance of counsel. Id. The supreme court reversed the appellate court and affirmed
the trial court. Id. at 69. The court noted that in People v. Washington, 38 Ill. 2d 446 (1967), the
- 11 - defendant’s petition contained an explanation for why the defendant could not obtain the
requisite affidavits, records, or other evidence, thereby satisfying compliance with section 122-2.
Collins, 202 Ill. 2d at 67-68. The Collins court also noted that in People v. Williams, 47 Ill. 2d 1
(1970), the defendant did not explain why affidavits, records, or other evidence were not
attached to his petition, but it was “easily inferred” from the facts of the petition the only
affidavit available would have been that of his counsel, whom the defendant alleged was
ineffective. Collins, 202 Ill. 2d at 68.
¶ 44 The Collins court explained:
“We recognize, of course, that requiring the attachment of ‘affidavits,
records, or other evidence’ will, in some cases, place an unreasonable burden
upon post-conviction petitioners. Indeed, Washington and Williams are two such
cases. This does not mean, however, that the petitioners in such cases are relieved
of bearing any burden whatsoever. On the contrary, section 122-2 makes clear
that the petitioner who is unable to obtain the necessary ‘affidavits, records, or
other evidence’ must at least explain why such evidence is unobtainable. In this
case, [the] defendant is asking to be excused not only from section 122-2’s
evidentiary requirements but also from section 122-2’s pleading requirements.
Nothing in the Act authorizes such a comprehensive departure.” (Emphases in
original.) Id.
¶ 45 It is unarguable that the merits of defendant’s ineffective assistance claim rest on
defendant’s assertion that counsel should have introduced NHTSA manual protocols. However,
defendant’s pro se petition did not attach the NHTSA manual or any relevant portion upon which
he relied. Furthermore, defendant’s petition does not explain why the NHTSA manual or any
- 12 - relevant portion of it was not attached. Collins instructs that where a defendant has failed to
comply with section 122-2’s pleading and evidentiary requirements, the trial court’s summary
dismissal is justified. Collins, 202 Ill. 2d at 66.
¶ 46 However, our supreme has also stated it is not the intent of the Act that claims
based on matters outside of the record be adjudicated on the pleadings. People v. Coleman, 183
Ill. 2d 366, 382 (1998). The function of pleadings under the Act is to evaluate whether a
defendant is entitled to a hearing. Id. “[T]he dismissal of a post-conviction petition is warranted
only when the petition’s allegations of fact—liberally construed in favor of the petitioner and in
light of the original trial record—fail to make a substantial showing of imprisonment in violation
of the state or federal constitution.” Id.
¶ 47 The very purpose of section 122-2 is to show that a defendant’s allegations are
capable of objective or independent corroboration. Hall, 217 Ill. 2d at 333; Collins, 202 Ill. 2d at
67. The statute explicitly requires a defendant’s petition to “have attached thereto affidavits,
records, or other evidence supporting its allegations.” 725 ILCS 5/122-2 (West 2022).
¶ 48 We again find Collins instructive, There, our supreme court addressed the
meaning of “affidavits, records, or other evidence” and the notion of independent corroboration
within the meaning of section 122-2 in stating no statute should be construed to render any term
therein superfluous or meaningless. Collins, 202 Ill. 2d at 67 (citing People v. Maggette, 195 Ill.
2d 336, 350 (2001)). If we accept defendant’s singular, conclusory mention of the NHTSA
manual in his affidavit as sufficiently compliant with section 122-2’s pleading requirements, we
render the terms “other evidence” meaningless surplusage. Additionally, “common sense dictates
that a defendant’s own affidavit is not at all objective or independent.” People v. Teran, 376 Ill.
App. 3d 1, 4 (2007). Likewise, if we excuse defendant’s failure to attach his relied upon
- 13 - NHTSA materials on the basis that it is not the intent of the Act to adjudicate his petition on the
pleadings when it is based upon matters extrinsic to the record, we would again render the Act’s
“other evidence” terms meaningless and superfluous. Therefore, we cannot excuse defendant’s
failure to comply with section 122-2 because nothing in the Act authorizes us to do so. Hodges,
234 Ill. 2d at 9 (stating the pleading requirements of 122-2 must be met to state the gist of a
constitutional claim.); Collins, 202 Ill. 2d at 66 (failure to comply with section 122-2 of the Act
justifies summary dismissal of a postconviction petition); People v. Harris, 2019 IL App (4th)
170261, ¶ 20 (“Because defendant failed to attach the necessary supporting material or provide a
reasonable explanation for its absence, we find summary dismissal of defendant’s postconviction
petition was proper.”). While the trial court here dismissed defendant’s petition for other reasons,
we review the court’s judgment rather than its reasoning, and we may affirm on any basis
supported by the record if the judgment is correct. People v. Munz, 2021 IL App (2d) 180873,
¶ 27. Therefore, we affirm the court’s judgment.
¶ 49 III. CONCLUSION
¶ 50 For the reasons stated, we affirm the trial court’s judgment.
¶ 51 Affirmed.
- 14 -